Tuesday, June 2, 2009

Part II

Department of the Interior Fish and Wildlife Service 50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi); Final Rule

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DEPARTMENT OF THE INTERIOR Register on May 5, 2000 (65 FR 26438), Conservation and Natural Resources and on March 26, 1999 (64 FR 14676), (ADCNR). This fish was implanted with Fish and Wildlife Service respectively. a sonic tag and released on April 17, Sturgeon is the common name used 2007, at the location where it was 50 CFR Part 17 for large, bony-plated, primitive fishes captured. in the family Acipenseridae which Flows in the Alabama River are [FWS–R4–ES–2008–0058; 92210–1117– typically grow slowly and mature late in heavily influenced by upstream releases 0000–FY08–B4] life. The Alabama sturgeon from Alabama Power Company and U.S. RIN 1018–AV51 (Scaphirhynchus suttkusi) is the Army Corps of Engineers (USACE) smallest of all the North American hydropower projects, and riverine Endangered and Threatened Wildlife sturgeons, typically weighing only 1 to habitats are fragmented by Claiborne and Plants; Designation of Critical 2 kilograms (2 to 4 pounds) at maturity. and Millers Ferry Locks and Dams. This Habitat for Alabama Sturgeon The head is broad and flattened shovel- 386-kilometer (240-mile) stretch of the (Scaphirhynchus suttkusi) like at the snout, with a tubular and Alabama River, along with the lower protrusive mouth. As with all sturgeon Cahaba River, represents the last AGENCY: Fish and Wildlife Service, species, there are four barbels (whisker- remaining viable habitat for the Interior. like appendages) located on the bottom sturgeon. ACTION: Final rule. of the snout in front of the mouth that Previous Federal Actions are used to locate prey. Bony plates SUMMARY: We, the U.S. Fish and called scutes line the body in five rows, On May 5, 2000, we listed the Wildlife Service (Service), designate one on the back and two each on the Alabama sturgeon as endangered under critical habitat for the Alabama sturgeon middle and lower sides. Bony plates the Act (65 FR 26438). In that final (Scaphirhynchus suttkusi) under the separated by sutures also cover the listing rule, we determined that Endangered Species Act of 1973, as head. The body narrows abruptly to the designation of critical habitat was amended (Act). In total, approximately rear-forming a narrow stalk between the prudent but that critical habitat was not 524 kilometers (326 miles) of river fall body and tail. The upper lobe of the tail determinable, due to the lack of within the boundaries of the critical fin is elongated and ends in a long information on the sturgeon’s biological habitat designation. The critical habitat filament. Coloration of the upper body and habitat needs. includes portions of the Alabama and is light tan to golden yellow, with a Following our listing decision, the Cahaba Rivers in Autauga, Baldwin, creamy white belly. Sturgeon are long- Alabama-Tombigbee Rivers Coalition Bibb, Clarke, Dallas, Lowndes, Monroe, lived fishes. Although the life span of (Coalition) brought suit in the United Perry, and Wilcox Counties, in the Alabama sturgeon in the wild is States District Court for the Northern Alabama. unknown, Burke and Ramsey (1985) District of Alabama under the citizen- DATES: This rule becomes effective on provided estimates on three individuals suit provision of the Act and the judicial July 2, 2009. that ranged from 2 to 10 years of age. review provisions of the Administrative Procedure Act (5 U.S.C. 551 et seq.), ADDRESSES: The Alabama sturgeon is endemic to This final rule and the alleging several defects in the listing associated final economic analysis are rivers of the Mobile River Basin below the Fall Line (inland boundary of the process. The District Court dismissed available on the Internet at http:// the Coalition’s lawsuit for lack of www.regulations.gov. Supporting Coastal Plain) (Mettee et al. 1996, p. 83; Boschung and Mayden 2004, p. 109). Its standing, but on appeal, the U.S. Court documentation we used in preparing of Appeals for the Eleventh Circuit this final rule is available for public current range includes the Alabama River from R.F. Henry Lock and Dam reversed the District Court’s decision, inspection, by appointment, during downstream to the confluence of the concluding that the Coalition did have normal business hours, at the U.S. Fish Tombigbee River. The species is also standing to challenge the listing and Wildlife Service, Alabama known to survive in the Cahaba River. decision. On remand, the District Court Ecological Services Field Office, 1208– For information on range of the species, granted the United States’ motion for B Main Street, Daphne, AL 36526; see the Criteria Used To Identify Critical summary judgment but ordered us to telephone 251/441–5858; facsimile 251/ Habitat section of this rule. issue both a proposed and a final rule 441–6222. Despite extensive and intensive designating critical habitat by May 14, FOR FURTHER INFORMATION CONTACT: Jeff efforts in the decade prior to its listing, 2006, and November 14, 2006, Powell, Aquatic Species Biologist, U.S. only eight Alabama sturgeon were respectively. Alabama-Tombigbee Fish and Wildlife Service, Alabama captured, or reported captured and Rivers Coalition et al. v. Norton et al., Ecological Services Field Office, 1208– released. These fish were collected from No. CV–01–0194–VEH (Final Order, B Main Street, Daphne, AL 36526; several locations in the Alabama River Nov. 14, 2005). The Coalition appealed telephone 251/441–5858; facsimile 251/ between Millers Ferry Lock and Dam and the District Court stayed the 441–6222. If you use a and its confluence with the Tombigbee judgment pending review by the telecommunications device for the deaf River (Rider and Hartfield 2007, p. 490). Eleventh Circuit. Under the direction of (TDD), call the Federal Information Since the 2000 publication of the final the District Court, we would have 2 Relay Service (FIRS) at 800/877–8339. rule listing the species under the Act, years from the time of the Eleventh SUPPLEMENTARY INFORMATION: two Alabama sturgeon have been Circuit’s decision to complete the captured or reported captured. One of designation of critical habitat. Background these was captured, videotaped, and On February 8, 2007, the Eleventh In this final rule, we intend to discuss released by a fisherman in the lower Circuit affirmed the decision of the only those topics directly relevant to the Cahaba River in July 2000 shortly after District Court, finding among other distribution of the Alabama sturgeon publication of the final rule. The most things that vacating the listing decision and the designation of its critical recent capture was an individual was not the proper remedy for failure to habitat. For more information on the collected from the Alabama River below designate critical habitat. Alabama- species, refer to the final and proposed Claiborne Lock and Dam on April 3, Tombigbee Rivers Coalition et al. v. listing rules published in the Federal 2007, by the Alabama Department of Kempthorne et al., 477 F.3d 1250 (11th

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Cir. 2007). On May 16, 2007, the sturgeon during two comment periods. incorporated into the final rule as Eleventh Circuit issued its judgment as The first comment period associated appropriate. a mandate, thus lifting the stay imposed with the publication of the proposed (1) Comment: One reviewer by the District Court and requiring us to rule (73 FR 30361) opened on May 27, mentioned that in the rule we state the issue a prudency determination and, if 2008, and closed on July 28, 2008. We life span of the Alabama sturgeon is prudent, a proposed rule designating also requested comments on the unknown, yet we then estimate critical habitat within 1 year (May 16, proposed critical habitat designation individuals could live from 12 to 15 2008), and a final rule designating and associated draft economic analysis years, possibly longer. critical habitat within 1 year after that during a comment period that opened Our Response: Although the life span (May 16, 2009). The Coalition sought December 30, 2008, was extended on of the Alabama sturgeon in the wild is Supreme Court review of the Eleventh January 28, 2009, and closed on unknown, Burke and Ramsey (1985) Circuit’s decision; that request was February 9, 2009. We received two provided estimates on three individuals denied on January 7, 2008. See requests for a public hearing. We held that ranged from 2 years to 10 years of Alabama-Tombigbee Rivers Coalition et a public hearing on January 28, 2009. age. In general, all sturgeon species are al. v. Kempthorne et al., 128 S. Ct. 877 We also contacted appropriate Federal, long-lived species, some may live longer (2008). State, and local agencies; scientific than 15 years. We published the proposed organizations; and other interested (2) Comment: The reviewer designation of critical habitat for the parties and invited them to comment on understands that the critical habitat Alabama sturgeon in the Federal the proposed rule and draft economic proposal must be based on the known Register on May 27, 2008 (73 FR 30361). analysis during these comment periods. range of the species at the time it was That proposal had a 60-day comment During the first comment period, we listed as ‘‘endangered’’, but suggests that period, ending July 28, 2008. On received 12 comment letters directly it might be prudent to expand the December 30, 2008, we announced the addressing the proposed critical habitat section to match the species historical opening of a public comment period designation. During the second range. and the scheduling of a public hearing comment period, we received 22 Our Response: According to section 3 on the proposed revised designation of comment letters addressing the of the Act, critical habitat includes those critical habitat for the Alabama sturgeon proposed critical habitat designation or areas that are occupied at the time of (73 FR 79770). We also announced the the draft economic analysis. During the listing that contain the physical and availability for public comment of a January 28, 2009, public hearing, 11 biological features necessary for the draft Economic Analysis (DEA) and an individuals or organizations made conservation of the species. Areas not amended required determinations comments on the designation. All occupied at the time of listing can be section of the proposal. In addition, we substantive information provided included only if it is determined that sought comment on our proposal to during comment periods has either been they are essential to conservation of the change the first primary constituent incorporated directly into this final species and that including only areas element (PCE) from its original determination or addressed below. occupied at the time of listing in critical description because we had determined Comments received were grouped into habitat may not be adequate to conserve that the original wording failed to four general issues specifically relating the species. Based on our best available indicate that the flow needs of the to the proposed critical habitat information (collection records and species are relative to the season of the designation for Alabama sturgeon and year. The comment period was opened are addressed in the following summary supporting PCEs), we have determined for 30 days from December 30, 2008, to and incorporated into the final rule as that such unoccupied areas are not January 29, 2008. We then published a appropriate. essential to the conservation of the notice on January 28, 2009 (FR 74 4912), species. Peer Review extending the comment period to allow (3) Comment: Would habitat all interested parties an additional In accordance with our policy descriptions from recent collections of opportunity to comment after the public published on July 1, 1994 (59 FR larval and juvenile pallid and hearing that was also held on January 34270), we solicited expert opinions shovelnose sturgeon in the Mississippi 28, 2009. This comment period closed from three knowledgeable individuals River be of use in trying to define the on February 9, 2009. with scientific expertise that includes preferred habitats of larval and juvenile For more information on previous familiarity with the species, the Alabama sturgeon in the Alabama Federal actions or for more information geographic region in which the species River? on the endangered Alabama sturgeon or occurs, and conservation biology Our Response: Yes. We considered all its habitat, refer to our proposed and principles. We received responses from recently published information on these final listing rules published in the all three of the peer reviewers. topics in the rule. Federal Register on March 26, 1999 (64 We reviewed all comments received (4) Comment: One reviewer suggests FR 14676), and on May 5, 2000 (65 FR from the peer reviewers for substantive that there has been a gradual decline in 26438), respectively, or request copies issues and new information regarding the Alabama River discharge recently. of them from the Alabama Ecological critical habitat for the Alabama They referenced the continued lowering Services Field Office (see FOR FURTHER sturgeon. The peer reviewers generally of an industry’s intake pipes to account INFORMATION CONTACT). We are concurred with our methods and for the river’s decreasing stage. designating critical habitat in conclusions and provided additional Our Response: This is likely the result accordance with section 4(b)(2) of the information, clarifications, and of the drought over the last two years, Act. suggestions to improve the final critical or, an increase in upstream habitat rule. Some reviewers suggested withdrawals. We recommend referring Summary of Comments and minor editorial changes. These have the issue of lowered industry intake Recommendations been incorporated into the final rule as pipes to the Alabama Office of Water We requested written comments from appropriate. Specific peer reviewer Resources. the public on the proposed designation comments are addressed in the (5) Comment: One reviewer noted that of critical habitat for the Alabama following summary and are also the sonic-tagged Alabama sturgeon was

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released on April 17, 2007, not May sturgeon, but improvements in riverine a NEPA analysis in order to fully 2007. habitat MUST be made in the Alabama address the impact of this rule. Our Response: We appreciate the River for migrating adults and drifting Our Response: It is our position that, correction. We have corrected this in the larvae if the species is to survive and outside the jurisdiction of the United final rule. eventually recover.’’ States Court of Appeals for the Tenth (6) Comment: One reviewer stated Our Response: While we designated Circuit, we do not need to prepare that they received a credible report from areas meeting the definition of critical environmental analyses as defined by an angler that caught an Alabama habitat, the area designated is NEPA (42 U.S.C. 4321 et seq.) in sturgeon below R.F. Henry Lock and essentially the best remaining habitat connection with designating critical Dam on April 11, 2008. available for the species. We recognize habitat under the Act. We published a Our Response: This report was the need to continue to improve notice outlining our reasons for this considered in the rule. conditions related to the distance of determination in the Federal Register (7) Comment: One reviewer stressed free-flowing habitat within designated on October 25, 1983 (48 FR 49244). This the importance of river connectivity. critical habitat and elsewhere in the assertion was upheld by the United The reviewer then stated the primary rivers (i.e., fish passage) and continue to States Court of Appeals for the Ninth reason the species is endangered is work with our partners to do so. Circuit (Douglas County v. Babbitt, 48 habitat fragmentation caused by large (11) Comment: One reviewer suggests F.3d 1495 (9th Cir. 1995), cert. denied dams on the Alabama River, and that that we spend more time discussing the 516 U.S. 1042 (1996)). fish bypass or fish passage opportunities potentially lethal effects of low (13) Comment: The State of Georgia should be explored further. dissolved oxygen levels. He states that requested that the lateral extent of the Our Response: Habitat fragmentation levels of 3 milligrams per liter (mg/L) (3 proposed critical habitat should be was one of the primary reasons for parts per million (ppm)) and water clarified, and identification of activities listing the species, and we will continue temperatures of 22–26° Celsius (C) (72– that may cause stages in the Alabama to work with our partners to address 79° Fahrenheit (F)) appeared to be lethal and Cahaba Rivers to decline below the fish passage in the Alabama River. for juvenile Atlantic and shortnose ‘‘ordinary high water mark.’’ (8) Comment: One reviewer suggests sturgeons. Allowing a minimum level of Our Response: For the purpose of this that higher flows from R.F. Henry could 4 mg/L (4 ppm) in the Alabama River rule, we have applied the definition for potentially attract Alabama sturgeon, may be very close to a lethal level for ‘‘ordinary high water mark’’ found at 33 especially in the winter and spring the Alabama sturgeon. CFR 329.11 as ‘‘the line on the shore when the species migrates upstream. Our Response: We have used the best established by the fluctuations of water Our Response: The comment is noted available science to determine the water and indicated by physical and we will continue to work with our quality needs of the Alabama sturgeon. characteristics such as clear, natural line partners to explore this possibility. We have reviewed the information in impressed on the bank; shelving; (9) Comment: One reviewer agrees the proposed rule and determined that changes in the character of the soil; that the pallid and shovelnose sturgeons clarification of the fifth PCE was destruction of terrestrial vegetation; the are acceptable surrogates for the required to more clearly state that presence of litter and debris; or other Alabama sturgeon; the reviewer also situations involving dissolved oxygen of appropriate means that consider the suggests that sturgeon in the genera less than 5 mg/L (5 ppm) would not be characteristics of the surrounding Pseudoscaphirhynchus and Acipenser the norm within the river. We have areas.’’ It is our position that the also have similar life histories that clarified the fifth PCE to state, ‘‘ordinary high water mark’’ does not could be applied to the Alabama ‘‘dissolved oxygen levels shall not be imply that consultation is required sturgeon. This includes information on less than 5 mg/L (5 ppm); except under every time the river stage falls below temperature and dissolved oxygen extreme conditions due to natural cause that point. As stated in the ‘‘Application preferences, migration patterns, or downstream of existing hydroelectric of the ‘‘Adverse Modification’’ reproduction, age and growth, habitat impoundments, where it can range from Standard’’ section, activities that cause preferences, and diet. 5 mg/L to 4 mg/L (5 ppm to 4 ppm), declines in flow, resulting in a decline Our Response: In the proposed rule, provided that the water quality is in river stage, will be evaluated on a we stated that we would utilize favorable in all other parameters.’’ case by case basis. Activities that may information on the Alabama sturgeon’s cause stages to decline include, but are closest two relatives, the pallid and Comments From States not limited to, drought conditions and shovelnose sturgeon. However, there are Section 4(i) of the Act states, ‘‘the excessive water withdrawals. still considerable data gaps that could Secretary shall submit to the State (14) Comment: The State of Alabama be filled by other sturgeon species. In agency a written justification for his noted that they are committed to this final rule, we use information failure to adopt regulations consistent continuing to work with the Service, resulting from research on other with the agency’s comments or USACE, and other agencies to develop sturgeon species in the background petition.’’ Comments received from the a drought operations plan (Alabama sections where appropriate. State regarding the proposal to designate Drought Operations Procedure— (10) Comment: One reviewer suggests critical habitat for the Alabama sturgeon ADROP) for the Alabama River. that ‘‘the distance of free-flowing habitat are addressed below. Our Response: We appreciate the currently available is likely detrimental During the first comment period, we proactive steps Alabama has taken to to the Alabama sturgeon, that is, there received comments from both the States begin development of a drought is likely NOT enough free-flowing of Georgia and Alabama disagreeing operations plan for the Alabama River. habitat for larval development in the with the inclusion of 131.4 cubic meters We believe this is an important step to reservoirs above Claiborne and Millers per second (cms) (4,640 cubic feet per ensuring all stakeholders fully Ferry locks and dams. The designation second (cfs)). Following the revision, understand the minimum flow of critical habitat as outlined in the both States agreed with the first PCE as requirements that may be imposed proposed rule and the revised proposed it appears in the final rule. during future drought events. rule is necessary to protect the last (12) Comment: The State of Georgia (15) Comment: The Alabama remaining habitat for the Alabama recommends that the Service engage in Governor’s Office stated that any flow

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requirement for the designated critical economic benefit in Alabama, but Cahaba River was based on the general habitat needs to be flexible enough to protection of the remaining wild places location of the ‘‘fall line’’ and has been realistically deal with drought we have will have positive effects for used as such for other species (e.g., in conditions. tourism and environmental quality.’’ the critical habitat for three threatened Our Response: We appreciate the Our Response: Comment noted. mussels and eight endangered mussels Office of the Governor’s concern with (19) Comment: The Birmingham in the Mobile River Basin (69 FR this matter. We will continue to work Audubon Society fully supports the 40083)). If information becomes with all stakeholders and regulatory designation and also states that the available that sturgeon were utilizing agencies to the best of our ability to economic impact of this designation is these stretches at the time of listing, or ensure that this will happen. We also not likely to be a serious burden. that this area is essential to the will continue working with the State, Our Response: Comment noted. conservation of the sturgeon, this rule Industry, and the USACE to finalize a (20) Comment: One commenter stated could then be revised based on the new drought operations plan for the the USACE’s locks and dams on the information. Alabama-Coosa-Tallapoosa (ACT) Basin Alabama River are not meeting their (23) Comment: One commenter stated that has an Adaptive Management intended purpose (approximately 3 that ‘‘given the absence of the species in Approach. boats per month use the locks) and are large areas of the proposed critical a waste of Federal dollars. The Public Comments habitat we recommend additional commenter then states ‘‘why not allow clarification is provided that clearly (16) Comment: One commenter these poor counties where this states how such areas are essential for questioned why is it going to take a year waterway goes through—give them the the conservation of the species.’’ to complete the designation. one to two million dollars it takes to Our Response: On May 16, 2007, the Our Response: We agree that certain maintain these locks. Let them put that areas might not appear to be occupied Eleventh Circuit issued its judgment as into economic development a mandate, requiring the Service to issue some of the time; however, sturgeons commissions for the counties and let are not stationary species. It is not a prudency determination and, if them decide how to develop their own prudent, a proposed rule designating uncommon for some species to migrate economy.’’ up to 578 km (359 mi) to spawn, and critical habitat within one year (May 16, Our Response: Comment noted. 2008), and a final rule designating (21) Comment: One commenter then drift another 240 km (149 mi) as critical habitat within one year after that recommended that the Service engage in larvae develop (DeLoney et al. 2007; (May 16, 2009). Alabama-Tombigbee a NEPA analysis in order to fully Hrabik et al. 2007). We believe the Rivers Coalition et al. v. Kempthorne et address the impact of this rule. entire unit, as designated, was occupied al., 477 F.3d 1250 (11th Cir. 2007). We Our Response: See response under at the time of listing and contains one needed all of the time allowed by the Comment (14). or more PCEs throughout the unit. court to review the best scientific (22) Comment: The Cahaba River Therefore, the areas designated meet the information about the species, allow for Society (CRS) fully supports the definition of occupied critical habitat as public participation in the process, designation. They recommend set forth in the Act. conduct an economic analysis, reviewed extending the designation an additional (24) Comment: Two commenters comments, and coordinate with 25 kilometers (km) (16 miles (mi)) of the believe the Service lacks the stakeholders on the designation. Cahaba River; upstream to the Cahaba information to support that Alabama (17) Comment: One commenter National Wildlife Refuge, as well as the sturgeon could occupy the Cahaba River clearly voiced his objection to this Alabama River above R.F. Henry Lock and impounded areas above Claiborne, designation, stating that it is, ‘‘a waste and Dam, up the Coosa River to Jordan Millers Ferry, and R.F. Henry lock and of time for good people, blowing Dam, and up the Tallapoosa River to dams. taxpayers’ money and unacceptable Thurlow Dam. Our Response: In July 2000, an Federal interference with citizen The CRS believes that this and other Alabama sturgeon was collected near activity and economic growth.’’ critical habitat designations will be a the mouth of the Cahaba River, and we Our Response: This action was court- powerful tool for improving have reliable information that an ordered and non-discretionary. On May understanding among developers, individual was collected and released in 16, 2007, the Eleventh Circuit issued its builders, and land-use decision-makers April 2008 by an angler immediately judgment as a mandate, requiring the about the importance of natural flow below R.F. Henry Dam. Additionally, Service to issue a prudency regimes, morphology and stability of based on our best available knowledge determination and, if prudent, a river channels, the value of free-flowing of other sturgeon species, these proposed rule designating critical habitat, and the significance of water individuals will move considerable habitat within one year (May 16, 2008), chemistry to maintain a healthy river distances from the points at which they and a final rule designating critical fauna that otherwise will not be were collected. Although we do not habitat within one year after that (May confronted. The CRS goes on to state have recent records from the Claiborne 16, 2009). Alabama-Tombigbee Rivers that, ‘‘in the long run, the educational pool, it contains one or more PCEs and Coalition et al. v. Kempthorne et al., 477 value of designating critical habitat is is contiguous with occupied habitats F.3d 1250 (11th Cir. 2007). among the most important of the upstream and downstream; we conclude (18) Comment: One commenter states benefits attained.’’ it was used by the species in its that, ‘‘the damage to the Alabama River Our Response: Based on the best movements up and down the river at the and the Alabama Sturgeon were done available scientific information, we have time of listing. without intention, to disregard further concluded at this time that the lower (25) Comment: One commenter damage to Alabama ecosystems would Coosa and Tallapoosa Rivers were not believes our approach to identifying the be an ignorant disregard for current occupied at the time of listing. The last physical and biological requirements of environmental science. The building of Alabama sturgeon records we have from the Alabama sturgeon is ‘‘flawed’’ Claiborne Lock and Dam, and the these rivers are prior to the because we state that we use subsequent disruption of the Alabama impoundments on the Alabama River. information on the pallid and River ecosystem, has had negligible The current upper boundary on the shovelnose sturgeon.

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Our Response: The Alabama sturgeon waterways (i.e., Federal reservoirs), Our Response: We have historically is an extremely rare species and little public swimming areas, and existing and consistently maintained that a 7- information is available about its within-bank dredging material disposal day average minimum flow of 131.4 cms physical and biological requirements. areas that are owned by the State of (4,640 cfs) in the Alabama River at Therefore, as required by the Act, we Alabama, found to be occupied at the Montgomery is ‘‘adequate to sustain the used the best available information time of listing, and to contain one or Alabama sturgeon during periods of which was generated mainly through more PCEs needed by the Alabama drought.’’ Proposals to allow flows to go the studies of two of its closest relatives, sturgeon; which is why these areas have below that level are likely to continue the pallid and shovelnose sturgeon. been included within the designation. to occur during drought conditions (but Considerable information has been (29) Comment: One commenter was could be proposed at other times) and recently published about the pallid and unclear how or when section 7 we would recommend Federal agencies shovelnose (cited in the proposed rule), consultation would be required. enter into consultation on such and that information was used as a basis Our Response: As stated in the final proposals whenever they occur because for many of the assumptions made for rule, section 7(a)(2) of the Act requires adverse effects are possible. We agree the physical and biological Federal agencies, including the Service, that the flow was not created as a requirements. We believe that this is the to ensure that actions they fund, ‘‘sturgeon’’ flow, but rather a best scientific data available as required authorize, or carry out are not likely to ‘‘navigation’’ flow. The origin of the by the Act. destroy or adversely modify critical 131.4 cms (4,640 cfs) can be traced back (26) Comment: One commenter habitat. Decisions by the Fifth and to a 1972 letter from Alabama Power questioned our use of ‘‘stable’’ in PCE Ninth Circuit Courts of Appeals have Company (APC) to the USACE where Number 2. They also question the invalidated our definition of APC concurs that a 7-day average flow association of mussel beds with stable ‘‘destruction or adverse modification’’ of 131.4 cms (4,640 cfs) is acceptable for substrates. (50 CFR 402.02) (see Gifford Pinchot a trial period. It goes on to state that the Our Response: For the purpose of this Task Force v. U.S. Fish and Wildlife 131.4 cms (4,640 cfs) is based on the analysis, stable refers to consolidated Service, 378 F.3d 1059 (9th Cir. 2004) 7Q10 for the USGS Gage at bed materials that contain substrate Montgomery. materials that are somewhat embedded and Sierra Club v. U.S. Fish and We revised the proposed rule in order and not easily moved. The presence of Wildlife Service et al., 245 F.3d 434, 442 to better clarify our position on the mussel beds in these areas is simply (5th Cir. 2001)), and we do not rely on 131.4 cms (4,640 cfs) flow. The revision used to illustrate that these areas have this regulatory definition when changed the first PCE to the following: not likely been disturbed in the recent analyzing whether an action is likely to past. destroy or adversely modify critical A flow regime (i.e., the magnitude, (27) Comment: One commenter did habitat. Under the provisions of the Act, frequency, duration, seasonality of discharge not understand how the fourth PCE we determine destruction or adverse over time) necessary to maintain all life could apply to impounded areas of the modification on the basis of whether, stages of the species in the riverine Alabama River, because of the presence with implementation of the proposed environment, including migration, breeding site selection, resting, larval development, of Claiborne, Millers Ferry, and R.F. Federal action, the affected critical habitat would remain functional (or and protection of cool water refuges (i.e., Henry Locks and Dams. tributaries). Our Response: We are not implying retain those PCEs that relate to the that the impounded areas contain the ability of the area to periodically We changed the first PCE from its fourth PCE. Presence of all PCEs is not support the species) to serve its original description, because we required for designation. We believe the intended conservation role for the determined that the original wording entire unit, as designated, was occupied species. Please refer to the Section 7 failed to indicate that the flow needs of at the time of listing and contains one Consultation section of the rule below the species are relative to the season of or more PCEs throughout the unit. for further discussion. the year. For example, sturgeon likely need a higher flow in the spring to Therefore, the areas designated meet the Comments About Flow and Water successfully spawn than was indicated definition of occupied critical habitat as Management set forth in the Act. by the 131.4 cms (4,640 cfs) in the (28) Comment: One commenter The majority of the comments during original PCE. Also, we determined that recommended the Service exclude all the initial comment period (ending July it was more descriptive and helpful to existing Federally-maintained channels, 27, 2008) were specific to the first PCE, potential action agencies to describe the marinas, boat ramps, public swimming especially the 131.4 cms (4,640 cfs) flow flow habitat needs of the species in areas and docking facilities within the requirements. As stated in the revised relation to their seasonality and how specified reach, existing within-bank rule (73 FR 79772), we removed the those seasonal flows allow for dredged material disposal areas, and 131.4 cms (4,640 cfs) from the first PCE maintenance of all life stages. Lastly, we Federal reservoirs, locks and dams, because we believed focusing on 131.4 determined that while we believe flows because of the importance of navigation cms (4,640 cfs) failed to account for the lower than 131.4 cms (4,640 cfs) may and recreation on the Alabama River complexity of variables that needs to be involve adverse affects to the species and hydropower generation by Federal analyzed to determine effects to the (and therefore we will continue to power plants. sturgeon. recommend consultation), depending Our Response: As was stated in the (30) Comment: We received a total of upon other factors, lower flows may or proposed rule (73 FR 30373), critical eight written comments during the may not be found to result in habitat does not include manmade initial comment period (ending July 28, measurable adverse effects. Therefore, structures (such as buildings, aqueducts, 2008) that addressed flow and the value focusing on 131.4 cms (4,640 cfs) in the docks, dams, runways, roads, and other included in the first PCE (131.4 cms PCE fails to account for the complexity paved areas) and the land or waterway (4,640 cfs)). All comments, in various of variables that need to be analyzed to on which they are located within the ways, specifically questioned the determine effects to the sturgeon. We legal boundaries of this rule. However, biological relevance of the 131.4 cms will continue to use 131.4 cms (4,640 this language does not include (4,640 cfs) flow. cfs) as a trigger for section 7

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consultation, but not necessarily a correlate these results with upstream indicate a preference for deep pools threshold for adverse modification. areas that do not receive a constant habitats. (31) Comment: One commenter flow. (c) ‘‘There is a significant correlation indicated the Service has not (34) Comment: The USACE believes between the tracked specimen’s location demonstrated why additional the Memorandum of Agreement (MOA), and historic dredging sites.’’ requirements or regulatory PCEs (for which includes the 1994 ‘‘White Paper’’, Our Response: (a) We agree that flows) are necessary for water quality. has served to protect the Alabama identifying one ideal flow is extremely Our Response: It was not our intent to sturgeon and its habitat. They believe difficult and may not, in the long run, designate additional flow requirements that the MOA should be referenced in be the most beneficial recommendation in order to ensure State water quality the rule, acknowledging its protective for the sturgeon. As stated in compliance. As stated by the commenter value. They believe it should continue clarification letter to Industrial with this question, it is the to be adhered to in absence of newer Economics (IEc) on October 22, 2008, responsibility of the Alabama biological information. we believe that flow needs for the Department of Environmental Our Response: The 1994 ‘‘White species are relative to the season of year. Management (ADEM) to ensure Clean Paper’’ is referenced in several locations We removed the 131.4 cms (4,640 cfs) Water Act compliance through the in the rule and we will continue to use from the first PCE to reflect this need for issuance and enforcement of National it. However, we will also modify it as flow seasonality. Pollution Discharge Elimination System needed and make future decisions based (b) Our statement in the rule indicated (NPDES) permits. on the best available science. that the Alabama sturgeon ‘‘prefers’’ a (32) Comment: APC noted that they river channel with stable sand and (35) Comment: Although the USACE are committed to continuing to work gravel river bottoms, and bedrock walls, agrees with the proposed changes to the with the Service, USACE, and other including associated mussel beds. This first PCE, they state that, ‘‘if data exist agencies to develop a drought doesn’t mean that they always occur in to support the designation of a flow operations plan (Alabama Drought these habitats. The conclusions drawn regime, then a detailed flow regime Operations Procedure—ADROP) for the by APC are based upon data taken from should be fully described in the PCE Alabama River. one fish. Based on the best available with references to supporting studies.’’ Our Response: We appreciate the scientific information on other North They go on to say, ‘‘without a fully proactive steps APC has taken to begin American sturgeon species, sturgeons described flow regime, the PCE remains development of a drought operations do prefer these optimal conditions. flawed, providing uncertain protection plan for the Alabama River (i.e., (c) While we appreciate the effort of to the species as well as uncertain ADROP). We believe this is an APC to summarize and share their economic impacts.’’ important step to ensuring all assessments of the tracking data, we do stakeholders fully understand the Our Response: We do not believe a not completely agree that dredging minimum flow requirements that may specific flow measurement would be creates favorable conditions for the be imposed during future drought applicable at all times of the year and sturgeon. The tagged sturgeon below events. we do not have the data to support a Claiborne Lock and Dam is likely (33) Comment: APC presented fully described flow regime. Our occupying this section of the river summaries of the data (discharge, position continues to support a variety because of temperature (flow from temperature, and dissolved oxygen of natural, seasonably variable flows Sizemore Creek) or food resources. We levels) they collected on August 5, 2008, that allow for maintenance for all life do agree with APC’s hypothesis that and October 21, 2008, at various stages of the sturgeon. In order to adult sturgeon can exist under a variety locations on the Alabama River develop a seasonably variable set of of conditions, and focusing on spawning downstream of Claiborne Lock and flow estimates for the species, we need season and the particular needs of eggs Dam. One of these locations was a long-term stream gauging records and a and larvae may ultimately have a greater USACE dredge site that has been continuous water quality monitoring effect on long term survival than dredged the last two years and has been network at several points on the measures that focus on adult specimens. routinely occupied by the tagged Alabama River. At this time, there are a We welcome the opportunity to work Alabama sturgeon. They concluded that limited number of long term discharge with APC to explore these ideas. temperature and dissolved oxygen records for the Alabama River. The levels were fairly well mixed at these station with the longest period of record Comments About the Science Used in locations and further suggested that the (67 years) is the USGS station at This Designation tagged fish may not be adversely Montgomery (station ID 0242000). We (37) Comment: The Alabama- affected by dredging. welcome the opportunity to partner Tombigbee Rivers Coalition (ATRC) Our Response: We appreciate APC’s with the USACE to begin developing a urges the Service to acknowledge the efforts to analyze flow, temperature, and long term discharge and water values serious limitations in its scientific dissolved oxygen levels in these areas. study. knowledge of the Alabama sturgeon and This information will be very useful as (36) Comment: The APC had several its life cycle requirements. They we analyze habitats that have been comments about flow requirements and maintain virtually nothing is known occupied by the tagged fish. However, the analysis they conducted on the data about where it breeds, spawns, and upstream of Claiborne Lock and Dam from the tagged Alabama sturgeon what they do after hatching. conditions are likely quite different and below Claiborne Lock and Dam, these Our Response: We certainly recognize will likely yield very different results. include: that our knowledge base is limited with Upstream of the dams (Claiborne and (a) ‘‘The relationship of flow to the the Alabama sturgeon. However, that is Miller Ferry) conditions very much like specimen’s needs is inconclusive’’ and why we have elected to use the best a reservoir and are not as well mixed as there is ‘‘no basis to identify any one available scientific information on two areas downstream of Claiborne Lock and ideal flow for the Alabama sturgeon.’’ of its closest relatives, the pallid and Dam, which receives a constant flow (b) ‘‘The specimen’s behavior is not shovelnose sturgeon. from the crested spillway. Therefore it consistent with the second PCE.’’ Also, (38) Comment: One commenter, would not be a fair comparison to the behavior of the tagged fish does not representing the ATRC, agrees that the

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Service ‘‘was justified by selecting the photoperiod; therefore, we believe Our Response: We recognize that shovelnose and pallid species as successful spawning cues are likely some sturgeon species have proven to be surrogates to extrapolate the biological some combination of the above adaptive animals, especially in the and physical information for the environmental factors, including high Mississippi River, but we do not believe Alabama sturgeon.’’ However, the spring flows. the evidence supports that dredging will commenter also suggests that there is (40) Comment: One commenter, actually increase available habitat, little to no useful, documented representing the ATRC, commented that thereby increasing the recovery information available to validate the Alabama sturgeon use similar potential of the Alabama sturgeon. information we used in the movements as shovelnose and pallid (44) Comment: The ATRC urges the development of the PCEs. Specifically, sturgeon, including low flow areas. The Service to avoid significant changes to the commenter questioned the lack of commenter also stated that, ‘‘low flow current channel maintenance practices information related to the effects of river seems to be of little concern to the in the absence of specific, new flow on spawning, spawning behavior, Alabama sturgeon, pallid sturgeon or information which provides a valid migration and aggregation at spawning shovelnose sturgeon.’’ scientific basis to understand how and sites, or egg deposition; substrate Our Response: We agree. The fish we why it is necessary for conservation preferences; growth rates; and diet of have been tracking does occupy low purposes. the Scaphirhynchus species. flow areas at certain times. We do not, Our Response: We review the Our Response: We respectfully however, have information to suggest operations and maintenance dredging disagree with the commenter’s belief that this is a desired or preferred procedures on the Alabama River every about a lack of useful information on the condition at other times of the year. In five years and we believe the shovelnose and pallid sturgeon. In 2007, addition, we know that higher flows are information in the ‘‘1994 White Paper’’ the Journal of Applied Ichthyology required during specific times of the is correct until new information provides a valid basis to changing our published an entire volume dedicated to year to initiate spawning migrations and findings on channel maintenance and the biology and conservation of the to allow larvae to develop. other issues. We will continue to use the three North American riverine sturgeons (41) Comment: One commenter, (Volume 23 Issue 4, Pages 289–538 best available science in making representing the ATRC, made the (August 2007)). Within this one volume decisions about this and other trust following statement, ‘‘the Endangered there are 30 papers devoted exclusively resources. Species Act requires that critical habitat to describing embryonic development, designation must be based on the best Comments Related to the Economic genetic variability, larvae distribution scientific and commercial data Analysis and dispersal, habitat use of during available.’’ The commenter continued different flow patterns, gonadal (45) Comment: Several commenters by stating the Service had failed in this development, evaluating spawning site believe that the economic analysis regard by not referencing several success, age and growth, distribution dramatically understates the true publications. and movements, and diet composition potential for adverse economic impacts, of larval and adult sturgeons of the Our Response: We respectfully some believe by a factor of as much as North American river sturgeons. disagree that we failed to use the 100. Several of these commenters state Although we recognize that there are appropriate references. The literature that when there are uncertainties about still considerable data gaps in our cited list is available from the Alabama the nature and breadth of regulatory knowledge of these rare fishes, Ecological Services Field Office (See impacts, the only way to identify the especially in terms of life history ADDRESSES) and represents the best potential economic impact is to assume requirements, we believe it is fair to scientific data available relevant to the the worst-case scenario and determine assume two characteristics that all Alabama sturgeon and this designation economic impacts under those North American sturgeon species of critical habitat. circumstances. Specifically, Troy (Acipenser and Scaphirhynchus) have (42) Comment: One commenter, University submitted an analysis that in common; that they spawn over hard representing the ATRC, describes in the rule has ‘‘the potential to destroy substrates in swift water and that they detail the chronology of the sonic-tagged approximately $900 million in local all migrate upstream to spawn. The Act Alabama sturgeon’s movements and output and over $1.6 billion in the requires us to use the best available patterns from April 2007 through overall U.S. economy.’’ scientific information available and we October 2008. Our Response: The commenters have done this throughout the rule and Our Response: We appreciate this assume that a minimum water flow and especially in the development of the summary of the movements of one fish, a cessation of dredging activities in the PCEs. and have used it in the context of the Alabama River will result from critical (39) Comment: One commenter, rest of the best available information on habitat designation. They further representing the ATRC, commented the life history and biology of sturgeons. assume that ongoing economic activities within the ACT Basin, such as that, ‘‘high spring flows may not be Comments About Navigation and essential to stimulation of sturgeon navigation, hydropower operations, and Dredging spawning runs.’’ industry production that relies on water Our Response: Although there are (43) Comment: One commenter, transport (such as pulp and paper), will differing opinions on which representing the ATRC, stated that be curtailed following critical habitat environmental cues are most important dredging could actually benefit the designation. These eventualities appear in stimulating sturgeon spawning Alabama sturgeon in several ways. One improbable given the history of movement, available literature generally of the examples used by the commenter conservation efforts undertaken for the agree on one factor; that all North is that dredging may actually create sturgeon to date, and the Service’s American sturgeon spawn, or at least habitat by increasing water velocity in current expectation for future actions. attempt to make spawning runs in the pool-like areas, thus increasing oxygen Nonetheless, Section 3 of the final spring. In the Southeastern United levels, cleaning the river bottom of silt economic analysis (FEA) recognizes that States, this just happens to coincide and rotting leaves, and having a flushing should the Service, in the course of with the wettest season and an extended effect on the river. future consultations on river flows in

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extreme drought years, determine that Remaining quantified impacts to commenter did not present any support higher flows are necessary to maintain economic activities dependent upon for the conclusion that only one percent suitable habitat conditions for sturgeon water management (e.g., navigation or of the studies performed have found conservation, a variety of activities hydropower), water quality permitting ‘‘harm’’ to the economic environment. including commercial shipping, (e.g., pulp and paper mills), and other However, the Service notes that the recreation, or hydropower may be activities are made up entirely of reports produced by IEc and other impacted. In addition, a text box has administrative costs of section 7 economics consultants have addressed a been added to the economic analysis consultations. Thus, measurable wide-range of potential economic that describes the analysis submitted by impacts of the type typically assessed changes, both regional and national in the commenter. with input-output models are not scope, potentially resulting from (46) Comment: One commenter states quantified in this analysis, and thus designation of critical habitat. that the benefits of critical habitat regional input-out modeling is not used. (50) Comment: One commenter states designation outweigh the risks to the As stated above, Section 3 of the FEA that the DEA may not meet sturgeon caused by the designation by recognizes that should the Service, in recommended OMB standards because an enormous margin. The commenter the course of future consultations on it does not consider regional growth adds that potential benefits include the river flows in extreme drought years, rates or market conditions associated value to medical research of having a determine that higher flows are with potentially impacted industries. fish that has survived since the Jurassic necessary to maintain suitable habitat Our Response: The U.S. Office of Period, a fully restored commercial conditions for sturgeon conservation, a Management and Budget’s (OMB) fishery, and an attraction for historical variety of activities including guidelines for conducting economic and nature-based tourism (which is commercial shipping, recreation, or analysis of regulations direct Federal important for poor communities’ hydropower may be impacted. These agencies to measure the costs of a improvement). impacts may in turn generate regional regulatory action against a baseline, Our Response: As described in economic effects. which it defines as the ‘‘best assessment Section 1 of the FEA, because the (48) Comment: One commenter states of the way the world would look absent Service believes that the direct benefits that the DEA primarily gives the proposed action’’ (U.S. Office of of the critical habitat rule are best consideration to agency costs as Management and Budget, ‘‘Circular A– expressed in biological terms, the measured in staff time for engagement, 4,’’ September 17, 2003, available at analysis does not quantify or monetize but ignores third party costs. http://www.whitehouse.gov/omb/ benefits. However, a qualitative Our Response: The FEA explicitly circulars/a004/a-4.pdf.). In other words, discussion of the potential categories of considers potential impacts to all the baseline includes the existing benefits of sturgeon conservation and impacted parties, whether they are regulatory and socio-economic burden critical habitat designation is provided Federal agencies, local governments, or imposed on landowners, managers, or in Section 7 of the FEA. private parties. Exhibit 1–2 of the FEA other resource users potentially affected (47) Comment: One commenter states presents the administrative cost by the listing of the species. Impacts that justification for not using input- estimates broken down into Service, that are incremental to that baseline output modeling is unsatisfactory Federal Agency, and third party costs. (i.e., occurring over and above existing because the use of input-output analysis Section 3 of the FEA discusses potential constraints) are attributable to the is an accepted tool utilized extensively impacts that could occur related to proposed regulation, in this case the by Federal agencies. recreators, homeowners, and the designation of critical habitat. As Our Response: As described in navigation industry, among others, recommended by OMB, the baseline Section 1 of the FEA, regional economic should additional river flows be incorporates, as appropriate, trends in impact analysis (commonly using required for the sturgeon. Section 4 of market conditions, implementation of regional input/output models) can the FEA discuss potential impacts on other regulations and policies by the provide an assessment of the potential NPDES permitees, such as the pulp and Service and other government entities, localized economic impacts of paper industry, to the extent that and trends in other factors that have the conservation efforts. Specifically, Alabama sturgeon encourages out-of- potential to affect economic costs and regional economic impact analysis compliance NPDES-permitted facilities benefits, such as the rate of regional produces a quantitative estimate of the to come into compliance sooner than economic growth in potentially affected potential magnitude of the initial would already have occurred absent the industries. In this analysis, the change in the regional economy sturgeon. anticipated impacts are primarily resulting from a regulatory action. These (49) Comment: One commenter states administrative, with some impacts models rely on multipliers that that IEc has found less than one percent associated with temporary dredging represent the relationship between a of species (out of 113 endangered shutdowns. The analysis discusses the change in one sector of the economy species analyses) actually would harm way in which these impacts relate to the (e.g., expenditures by recreators) and the the economic environment (which was existing baseline conditions. effect of that change on economic the Port of Los Angeles). (51) Comment: One commenter states output, income, or employment in other Our Response: The economic analyses that there will be little or no new local industries (e.g., suppliers of goods of critical habitat developed by the economic development if the critical and services to recreators). These Service, including those developed by habitat is accepted as proposed. economic data provide a quantitative the Service’s economics consultants, are Our Response: The commenter estimate of the magnitude of shifts of not intended to present a determination presents no evidence to support this jobs, revenues, and taxes in the local of economic harm. Instead, these statement. economy. However, for this analysis, analyses are intended to provide (52) Comment: One commenter states quantified impacts associated with objective information on potential that the counties surrounding the sturgeon conservation efforts primarily economic and other costs of proposed critical habitat are result in additional costs incurred due designation, which the Secretary can economically depressed, to short term shutdowns of dredging then use in addressing the requirements disproportionately African-American, operations to avoid the sturgeon. of section 4(b)(2) of the Act. The and in need of every possible strategic

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advantage to attract new jobs. underestimates the value of barge consultation with USACE every five Designation would therefore violate the transportation to the region of the State, years since 1994 that dredging of Council of Environmental Justice’s which is in a socio-economically unconsolidated sediment will not definition of environmental justice, in disadvantaged area. adversely affect the sturgeon, the FEA addition to imposing permanent Our Response: Sections 3 and 5 of the finds that annual maintenance dredging economic impacts from which the FEA discuss the water transportation of the Federal navigation channel in the region will never be able to recover. industry in the Alabama River, and Alabama River is not expected to be Our Response: Section 2 of the FEA provide information on the value of the affected by the critical habitat rule, presents demographic statistics on the industry to the region based on data other than to continue to result in a five- potentially affected region. The critical produced by the Coosa-Alabama River year review of USACE dredging habitat region does exhibit higher than Improvement Association. However, the activities. With regard to potential average unemployment and poverty analysis does not anticipate large impacts to within-bank disposal, rates, and has higher minority impacts on the barge transportation Section 5.3.1 discusses that during the populations than areas outside the industry. Regarding the stated socio- 2008 five-year review, the Service did region. Note that, as in Comment 45, the economic concerns, additional request that the USACE move one commenter assumes that ongoing demographic information has been disposal site from a river mouth to economic activities within the ACT added to the FEA in Section 2. another location in the channel, with Basin, such as navigation, hydropower (56) Comment: One commenter states limited impacts on operations. operations, and industry production that Carters Lake and Lake Allatoona (59) Comment: One commenter states that relies on water transport (such as should be included in any discussions that the dredging shutdown costs for pulp and paper), will be curtailed and analysis regarding the effects of 2007 and 2008 ($88,800 and $44,400) following critical habitat designation. upstream reservoir storage and flows in appear to be industry costs, and that These eventualities appear improbable the Alabama River. they should be replaced with $25,620 given the history of conservation efforts Our Response: Carters Lake and Lake and $14,011 for 2007 and 2008, undertaken for the sturgeon to date, and Allatoona have been incorporated into respectively. the Service’s current expectation for the discussion of potential impacts in Our Response: At the time of the DEA, future actions. All quantified Section 3 of the analysis. these USACE costs were not available. incremental impacts of critical habitat (57) Comment: One commenter states These have been incorporated into designation are administrative impacts that an economic analysis on the APC Section 5 of the FEA and total estimates of section 7 consultation, and would not FERC relicensing efforts should be have been revised accordingly. be expected to disproportionately affect conducted after consultation is (60) Comment: One commenter states socio-economically disadvantaged complete in order to incorporate any that it is reasonable to expect that groups. agreed-upon minimum flow or drought dredging shutdowns will increase in (53) Comment: One commenter states plan. frequency and duration as the sturgeon that the DEA fails to consider certain Our Response: The timeframe for population recovers. In addition, the major impacts on the USACE’s channel publication of the critical habitat rule commenter states that it is also maintenance activities, limits on was required by the court and precedes reasonable to expect that consultations industrial wastewater discharges, and the completion of the relicensing will increase in frequency as the limits on land use activities such as process for APC. We would agree that sturgeon population recovers. agriculture and silviculture. an analysis of impacts once that process Our Response: No information is Our Response: The FEA considers is complete could provide additional available about the rate at which the impacts to maintenance dredging, information. sturgeon will recover or whether such industrial wastewater discharge, (58) Comment: One commenter states recovery will overlap with areas in agriculture, and silviculture in Sections that the DEA assumes the only which dredging takes place, or if fish 4 and 5. additional costs to the USACE will be will be tagged, so forecasting increased (54) Comment: One commenter states costs associated with consultation. The dredging shutdown frequency is not that additional flow requirements could commenter adds that the USACE does possible. The Service points out that a have large economic impacts associated incur shutdown costs without the single tagged Alabama sturgeon with navigation and hydropower critical habitat designation, and that currently exists. Unless additional generation throughout the basin. within-bank disposal of dredged sturgeon can be found and tagged, we Associated potential impacts would materials could also be affected. do not expect more dredging shutdowns depend on the magnitude of the Our Response: Section 5 of the FEA in the future. As the future population requirement, timing, and prevailing discusses that impacts to the USACE are of Alabama sturgeon is not known, this drought-water budget interactions. anticipated to include annual analysis uses the recent past as an Our Response: We agree. See compliance costs incurred by the indicator of likely future rates of Comment 45. USACE to communicate and coordinate shutdowns. Nonetheless, a caveat has (55) Comment: Several comments their upcoming activities to the Service been added to Section 5 of the FEA that relate to barge traffic within the river. at the beginning of each dredging describes the commenter’s concern. One commenter states that access to season, as well as costs incurred by the (61) Comment: One commenter states reliable water transportation provides a USACE and its contractors related to that there are economic uncertainties competitive advantage for the temporary dredging shutdowns on involved in future consultations that recruitment of new industry for this average once per year between 2009 and should be captured as additional region and cannot be ignored. Another 2028. Because (1) the Service states in potential impacts. For example, FWS states that the use of barge transport for the critical habitat rule that only the made recommendations for additional receiving fuel oil at their dock at the dredging of consolidated materials conservation measures following the 69th river mile saves them should result in a ‘‘may affect’’ critical habitat designation for the Gulf approximately $1 million each year in determination for sturgeon critical sturgeon, including the purchase and transportation costs. While another habitat and (2) the Service has use of hydrophones to monitor the states that the DEA seriously confirmed through informal presence of tagged Gulf sturgeon.

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Our Response: The FEA point at which the measures provided (section 515 of the Treasury and General acknowledges that uncertainty exists under the Act are no longer necessary. Government Appropriations Act for with regard to future conservation Critical habitat receives protection Fiscal Year 2001 (Pub. L. 106–554; H.R. efforts likely to be undertaken for under section 7 of the Act through the 5658)), and our associated Information sturgeon. No specific additional prohibition against Federal agencies Quality Guidelines provide criteria, recommendations have been identified carrying out, funding, or authorizing the establish procedures, and provide that would pertain to sturgeon critical destruction or adverse modification of guidance to ensure that our decisions habitat. critical habitat. Section 7(a)(2) of the Act are based on the best scientific data requires consultation on Federal actions available. They require our biologists, to Summary of Changes From Proposed that may affect critical habitat. The the extent consistent with the Act and Rule designation of critical habitat does not with the use of the best scientific data 1. We have changed the first PCE from affect land ownership or establish a available, to use primary and original the original description in our original refuge, wilderness, reserve, preserve, or sources of information as the basis for proposal (73 FR 30361; and explained other conservation area. Such recommendations to designate critical this change in a subsequent revised designation does not allow the habitat. proposed rule at 73 FR 79770) because government or public to access private When we are determining which areas we have determined that the original lands. Such designation does not should be designated as critical habitat, wording failed to indicate that the water require implementation of restoration, our primary source of information is flow needs of the species are relative to recovery, or enhancement measures by generally the information developed the season of the year. Please refer to the non-Federal landowners. Where a during the listing process for the Primary Constituent Elements (PCEs) for landowner seeks or requests Federal species. Additional information sources the Alabama Sturgeon section below for agency funding or authorization for an may include the recovery plan for the specific wording of the first PCE. action that may affect a listed species or species, articles in peer-reviewed 2. We have further clarified a portion critical habitat, the consultation journals, conservation plans developed of the fifth PCE to: requirements of section 7(a)(2) would by States and counties, scientific status ‘‘dissolved oxygen levels not less than apply, but even in the event of a surveys and studies, biological 5 mg/L (5 ppm), except under extreme destruction or adverse modification assessments, or other unpublished conditions due to natural causes or finding, the Federal action agency’s and materials and expert opinion or downstream of existing hydroelectric the applicant’s obligation is not to personal knowledge. restore or recover the species, but to impoundments, where it can range from Habitat is often dynamic, and species implement reasonable and prudent 5 mg/L to 4 mg/L (5 ppm to 4 ppm); may move from one area to another over alternatives to avoid destruction or 3. We added a few recommendations time. Furthermore, we recognize that in the ‘‘Special Management adverse modification of critical habitat. To be included in a critical habitat critical habitat designated at a particular Considerations’’ section. These point in time may not include all of the recommendations encourage finding designation, habitat within the geographical area occupied by the habitat areas that we may later alternative ways of increasing the determine are necessary for the recovery amount of free-flowing habitat in the species at the time it was listed must contain the features that are essential to of the species. For these reasons, a Alabama River that allow sturgeon and critical habitat designation does not other migratory species to move freely the conservation of the species, and be included only if those features may signal that habitat outside the between feeding, resting, and spawning designated area is unimportant or may grounds. require special management consideration or protection. Critical not be required for recovery of the Critical Habitat habitat designations identify, to the species. Areas that are important to the Background extent known using the best scientific data available, habitat areas that provide conservation of the species, but are Critical habitat is defined in section 3 essential life cycle needs of the species outside the critical habitat designation, of the Act as: (i.e., areas on which are found those will continue to be subject to (i) The specific areas within the physical and biological features conservation actions we implement geographical area occupied by the essential to the conservation of the under section 7(a)(1) of the Act. Areas species, at the time it is listed in species). Under the Act and our that support populations are also subject accordance with the Act, on which are implementing regulations, we can to the regulatory protections afforded by found those physical or biological designate critical habitat in areas the section 7(a)(2) jeopardy standard, as features outside of the geographical area determined on the basis of the best (I) Essential to the conservation of the occupied by the species at the time it is available scientific information at the species and listed only when we determine that time of the agency action. Federally (II) Which may require special those areas are essential for the funded or permitted projects affecting management considerations or conservation of the species and that listed species outside their designated protection; and designation limited to those areas critical habitat areas may still result in (ii) Specific areas outside the occupied at the time of listing would be jeopardy findings in some cases. geographical area occupied by the inadequate to ensure the conservation of Similarly, critical habitat designations species at the time it is listed, upon a the species. made on the basis of the best available determination that such areas are Section 4 of the Act requires that we information at the time of designation essential for the conservation of the designate critical habitat on the basis of will not control the direction and species. the best scientific and commercial data substance of future recovery plans, Conservation, as defined under available. Further, our Policy on habitat conservation plans (HCPs), or section 3 of the Act, means the use of Information Standards Under the other species conservation planning all methods and procedures that are Endangered Species Act, published in efforts if new information available at necessary to bring any endangered the Federal Register on July 1, 1994 (59 the time of these planning efforts calls species or threatened species to the FR 34271), the Information Quality Act for a different outcome.

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Physical and Biological Features been taken over a variety of substrates, indicates these areas are important for In accordance with section 3(5)(A)(i) including sand, gravel, and mud, from feeding or for providing thermal refugia and 4(b)(1)(A) of the Act and regulations 6 to 14 m (20 to 46 ft) deep (Williams during the warmer summer months. and Clemmer 1991, p. 26). The USACE at 50 CFR 424.12, in determining which Food areas within the geographical area identified 30 locations in the Alabama River where 58 Alabama sturgeon were Reports indicate that the species is an occupied by the species at the time of opportunistic bottom feeder (Mayden listing to designate as critical habitat, reportedly captured between 1950 and 1998, and documented channel and Kuhajda 1996, p. 257; Williams and we consider the physical and biological morphology and substrate types at 12 of Clemmer 1991, p. 26; Burke and Ramsey features essential to the conservation of the capture locations during low flow 1985, p. 35). Keevin et al. (2007, p. 500) the species that may require special conditions. Substrates associated with conducted a stomach content analysis management considerations or these capture sites included sand, on 12 Alabama sturgeon individuals protection. We consider the physical gravel, and limestone outcrops. All from museum collections and found and biological features to be the PCEs capture locations downstream of aquatic insects and fish to be the laid out in the appropriate quantity and Claiborne Lock and Dam were either on predominant food items. This finding spatial arrangement for the conservation or within 300 m (984 ft) of a sandbar. suggests a diet quite similar to the diets of the species. These include, but are Most historical and recent sturgeon of the pallid and shovelnose sturgeons not limited to: capture sites are at or near features described by Gerrity et al. (2006, p. 606) (1) Space for individual and presumably associated with feeding, and Hoover et al. (2007, p. 494). Except population growth and for normal reproduction, or refugia, and include for the absence of fish in the diet of behavior; rock walls, channel training devices, shovelnose sturgeon, all three species (2) Food, water, air, light, minerals, or deep pools, mussel beds, and/or stable tended to feed on similar items, other nutritional or physiological sand and gravel bottoms (Burke and primarily aquatic insects. The insects requirements; Ramsey 1985, p. 53; Mayden and identified in these studies are found (3) Cover or shelter; Kuhajda 1996, p. 257; Hartfield and over a variety of substrates, including (4) Sites for breeding, reproduction, Garner 1998, p. 4). The presence of soft and hard rocky bottoms; therefore, and rearing (or development) of mussel beds represents stable channel protection of most shallow-water habitat offspring; and habitats with high aquatic invertebrate (shoals, gravel or sand bars) is essential (5) Habitats that are protected from diversity and density that are likely to maintaining an acceptable food base. disturbance or are representative of the important feeding areas for sturgeon; A distinct difference observed by historical geographical and ecological deeper holes may be used as thermal Keevin et al. (2007, p. 502) in the diet distributions of a species. refugia during times of low flow and of the Alabama sturgeon was the We derive the specific PCEs for the warmer temperatures (Hartfield and presence of ceratopogonids (biting Alabama sturgeon from the biological Garner 1998, p. 5). midges) and siphlonurids (mayfly needs of this species as described in the Data collected from a radio-tagged family). These small, aquatic larvae are Critical Habitat section of the proposed Alabama sturgeon, released in 1985 near very active, strong swimmers that tend rule to designate critical habitat for the Millers Ferry Lock and Dam on the to occupy the water column or areas Alabama sturgeon published in the Alabama River and tracked for 4 near the surface (Keevin et al. 2007, p. Federal Register on May 27, 2008 (73 months, showed that its preferred 502), indicating that the sturgeon may FR 30361), along with subsequent position was in swift current at a depth be a mid-water column feeder. Irwin et changes we describe above in the of 7.7 to 12.3 m (25 to 40 ft), but never al. (2005, p. 39) found that juvenile Summary of Changes from Proposed at the deepest part at any location shovelnose sturgeon overwhelmingly Rule section. except where bottom contour was preferred feeding in sandy substrates Space for Individual and Population uniform (Burke and Ramsey 1985, p. and actively avoided gravel areas. It is Growth and for Normal Behavior 32). Irwin et al. (2005, p. 5) and Kynard unknown if this behavior is displayed et al. (2007, p. 369) documented that by the Alabama sturgeon, but 2007 All river sturgeons (Scaphirhynchus adult shovelnose sturgeon are more tracking data suggest that the species spp.) are migratory and may migrate active at night. This type of behavior may rest in the deeper, fast-flowing hundreds of kilometers to spawn. was also observed in juvenile areas during the day and feed in Generally, sturgeons migrate to optimize shovelnose sturgeon (Kynard et al. 2007, shallow, sandy shoal areas at night feeding and reproductive success. p. 369), and a similar pattern is (ADCNR and Service unpublished data). Downstream migrations are associated currently being observed in the Alabama Water Quality with feeding and upstream migrations sturgeon collected in 2007 that is being are usually associated with spawning tracked in the lower Alabama River Generally, most species of sturgeon (Auer 1996, p. 153; Bemis and Kynard (ADCNR and Service unpublished data are not as tolerant of low oxygen levels 1997, p. 175). The newly hatched larvae 2007, 2008). During daylight hours in as other fishes; however, because of of other river sturgeon are free-floating the summer of 2007, this sturgeon their benthic lifestyles, they are more and may drift hundreds of kilometers remained in the deeper, flowing likely to encounter areas with low levels before settling to a benthic (bottom) portions of the channel. However, of dissolved oxygen (Secor and juvenile existence. Therefore, during the late afternoon and early Gunderson 1998, p. 611). Temperature connectivity and availability of evening hours, the sturgeon moved into and dissolved oxygen levels can affect spawning areas and larval, juvenile, and shallower habitats directly adjacent to a sturgeon survival and growth, with early adult feeding and growing habitats are small perennial tributary. We have no life stages being more sensitive to these necessary for the conservation of the evidence that the sturgeon moves into variables than the adult stage (Secor and species. these tributaries; it may be taking Gunderson 1998, p. 604). High levels of Based on collection records, the advantage of cooler water found at the dissolved oxygen, as well as acceptable species is known to inhabit the main interface between the tributaries and the levels of other water quality parameters, channel of large coastal plain rivers of main stem of the river. The amount of are necessary for egg maturation and the Mobile River Basin. Specimens have time this tagged fish spent in these areas hatching, and larval and juvenile

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development. Poor water quality has movements are likely extensive and Flowing water provides a means for even been linked to hermaphrodism in cover long distances. transporting nutrients and food items, shovelnose and pallid sturgeon (U.S. The capture of 12 individuals moderating water temperatures and Environmental Protection Agency (including several gravid females) dissolved oxygen levels, and diluting (USEPA) 2007, p. 4). during a single collection trip near the pollutants, as well as transporting and There are currently more than 1,600 mouth of the Cahaba River on March 21, suspending developing sturgeon National Pollutant Discharge 1969, suggests directional movements embryos and larvae. Elimination System (NPDES) permits during the spawning season (Williams The quality of water, which comprises issued within the Alabama River and Clemmer 1991, p. 27). Gravid the sturgeon’s chemical habitat, is downstream of the Fall Line, which females with ripe eggs have also been directly related to the volume of water could impact sturgeon habitat. It is collected during late March, April, and present in the river. It affects sturgeon possible that some of these point-source early May, which may indicate a behavior, growth, and viability in all life discharges, along with other non-point prolonged spring spawning or yearly stages. We have changed the first PCE sources of pollutants, could produce variations in the occurrence of preferred from its original description because we pollutant concentrations that may be spawning temperatures. Actual timing have determined that the original harmful to the Alabama sturgeon. At the of spawning during this period may also wording failed to indicate that the flow time of listing in May 2000, we believed vary depending on water temperature needs of the species are relative to the that State water quality standards and river discharge. All sturgeon species season of the year. For example, (which the State adopted from the produce eggs that are adhesive and sturgeon likely need a higher flow in the national standards set by the USEPA) require a current for proper spring to successfully spawn than the were protective of the Alabama sturgeon development. Although specific 131.4 cms (4,640 cfs) flow indicated in as long as discharges were within locations at which eggs have been the original PCE. Also, we have permitted limits and enforced according deposited have not been identified for determined that it is more descriptive the Alabama sturgeon, they are and helpful to potential action agencies to the provisions of the Clean Water Act presumably similar to those of other to describe the habitat needs of the (Biggins 1994, p. 4). These water quality river sturgeons, where eggs are species in relation to flow seasonality requirements were established with the deposited on hard bottom substrates and how seasonal flows allow for intent to protect all aquatic resources such as bedrock, armored gravel, or maintenance of all life stages. Lastly, we within the State of Alabama and were channel training works in deep water have determined that while we believe presumed to be protective of the areas, and possibly in some larger flows lower than 131.4 cms (4,640 cfs) Alabama sturgeon. However, the Service tributaries, such as the Cahaba River may involve adverse effects to the is currently in consultation with the (Burke and Ramsey 1985, p. 53). species (and therefore we will continue USEPA to evaluate the protectiveness of Although no information about larval to recommend consultation), depending criteria approved in USEPA’s water development exists for the Alabama upon other factors, lower flows may not quality standards for Alabama sturgeon sturgeon, we assume that the Alabama result in measurable adverse effects. and other threatened and endangered sturgeon may have needs similar to Therefore, focusing on 131.4 cms (4,640 species and their critical habitats as those of other river sturgeons, which cfs) in the PCE fails to account for the described in the Memorandum of require highly oxygenated, long complexity of variables that need to be Agreement our agencies signed in 2001 stretches of free-flowing water for analyzed to determine effects to the (66 FR 11201, February 22, 2001). Other development. The larvae are planktonic, sturgeon. factors that can potentially alter water drifting with river currents for 12 to 13 Aquatic life, including fish, requires quality are droughts and periods of low days after hatching, and exhibit a swim- acceptable levels of dissolved oxygen. flow, non-point source runoff from up and drift behavior while floating in The type of organism and its life stage adjacent land surfaces (e.g., excessive currents (Kynard et al. 2007, p. 365). determine the level of oxygen required. amounts of nutrients, pesticides, and Research indicates that pallid sturgeon Generally, among the fish, cold water sediment), and random spills or larvae can drift more than 200 km (124 species are the most sensitive, with unregulated discharge events. This mi) during the first 11 days of the larval young life forms being most critical. could be particularly harmful during life stage, depending on water Dissolved oxygen levels of 3 mg/L (3 drought conditions when flows are velocities, before settling to the benthic ppm) and water temperatures of 22–26 depressed and pollutants are more environment (Braaten and Fuller 2007, °C (72–79 °F) appeared to be lethal for concentrated. Therefore, adequate water p. 1). It is unclear, at present, whether juvenile Atlantic sturgeon (Secor and quality, quantity, and flow are essential Alabama sturgeon require distances Gunderson 1998, p. 607). Temperature, for normal behavior, growth, and comparable to those exhibited by pallid another water quality parameter, is viability during all life stages of the sturgeon, but the life history strategy is related to dissolved oxygen. The amount sturgeon, including embryo thought to be the same. A further of dissolved oxygen that is present in development and hatching, and larval reduction in the distance of free-flowing water (the saturation level) depends and juvenile development. habitat currently available would likely upon water temperature. As the water Sites for Breeding, Reproduction, or be detrimental to the sturgeon. temperature increases, the saturated Rearing (or Development) of Offspring dissolved oxygen level decreases. The Riverine Flows and Channel Stability more oxygen there is in the water, the The Alabama sturgeon is believed to Flows in the Mobile River Basin have greater the assimilative capacity (ability reach sexual maturity between 5 and 7 been substantially altered from natural to consume organic wastes with years of age. Spawning frequency of conditions due to the construction and minimal impact) of that water (Pitt both sexes is likely influenced by food operation of the large number of 2000, pp. 6–7). Biochemical oxygen supply and fish condition, and may impoundments. Additionally, the river’s demand (BOD) is the oxygen that would occur every 1 to 3 years. Similar to other temperature, biogeochemical processes be required to stabilize the waste after river sturgeon, the Alabama sturgeon is that would have occurred in the absence its discharge into a body of water. believed to migrate upstream during the of the dams, and pollution assimilation Wastewater discharges that have a high late winter and spring to spawn. These capabilities have also been altered. BOD will have a much greater

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detrimental effect on stream dissolved (Hartfield and Garner 1998, p. 6). As one or more of the PCEs found in that oxygen during critical summer months mentioned above, the preferred diet of unit. These activities include, but are than they would during colder months. the sturgeon is aquatic invertebrates; not limited to, those listed in the Summer months also have lower stream therefore, the presence of mussel beds Application of the ‘‘Adverse flow rates, which worsens the problem may be an important indicator of Modification’’ Standard section as by further reducing the water’s suitable sturgeon feeding habitat. activities that may destroy or adversely assimilative capacity (Pitt 2000, pp. 6– modify critical habitat. We summarize Primary Constituent Elements (PCEs) for 7). In the worst case scenario, flows here the primary threats to the physical should be sufficient to meet State water the Alabama Sturgeon and biological features essential to the quality standards, which ensure at least Under the Act and its implementing conservation of the species. 4 mg/L (4 ppm) of dissolved oxygen regulations, we are required to identify Water quality, as discussed in the during low-flow periods and below the physical and biological features Application of the ‘‘Adverse hydropower operations, and 5 mg/L (5 (PCEs laid out in the appropriate Modification’’ Standard section, can ppm) in other river reaches. quantity and spatial arrangement) influence all life stages of the sturgeon. During 2007 and 2008, the Alabama within the geographical area known to Water pollution and changes in water River Basin experienced the worst be occupied by the Alabama sturgeon at quality can originate from either non- drought ever recorded. Although this the time of listing that are essential to point or point source discharges. Non- drought is currently recognized as the its conservation and which may require point source pollution is ubiquitous in worst drought in modern history, some special management considerations or the Mobile Basin and can originate from researchers believe that it may not have protections. Based on the above needs a variety of land use practices (such as been that unusual (B. Erhardt, USACE and our current knowledge of the life livestock grazing, row crop farming, Meteorologist, pers. comm. 2008). Using history, biology, and ecology of the silviculture, and residential bald cypress (a long-lived species) species, we have determined that development). The impacts from nearly growth rings as an indication, the 2007– Alabama sturgeon’s PCEs are: all non-point source pollutant sources 08 hydrologic period may have actually 1. A flow regime (i.e., the magnitude, can be managed by implementing the been more normal over the last 1,000 frequency, duration, seasonality of appropriate best management practices. years than conditions experienced over discharge over time) necessary to This may include creation and the last 40 years (which may have been maintain all life stages of the species in maintenance of riparian buffers, and exceptionally wet). Therefore, the riverine environment, including control of soil loss and runoff from considering that sturgeon species have migration, breeding site selection, adjacent lands. Point source pollution survived a range of hydrologic resting, larval development, and typically originates from industrial and conditions over the years, we believe protection of cool water refuges (i.e., municipal discharges, but may include sturgeon are adapted to these periodic tributaries). any discharge that originates from a low-flow conditions, if poor water 2. River channel with stable sand and single point. Point source pollution can quality (from the Alabama River gravel river bottoms, and bedrock walls, be managed by ensuring that NPDES reservoirs) doesn’t further exacerbate including associated mussel beds. permitted discharges are within the environmental stress levels to the 3. Limestone outcrops and cut compliance at all times. This requires sturgeon. Although the sturgeon we are limestone banks, large gravel or cobble proper water quality monitoring and currently tracking survived the 2007–08 such as that found around channel record keeping, and ensuring that drought, we do not believe that the training devices, and bedrock channel enough flow is present in the river to Alabama sturgeon is adapted to survive walls that provide riverine spawning assimilate the volume of material that is extended drought periods where water sites with substrates suitable for egg being discharged. quality is compromised by excessive deposition and development. The Service should be consulted discharges that the river is unable to 4. Long sections of free-flowing water before actions that are Federally funded, assimilate. More specifically, as to allow spawning migrations and authorized, or permitted are undertaken described above, low-flow conditions development of embryos and larvae. that may disturb areas upstream of areas affect the chemical environment 5. Water temperature not exceeding known to support sturgeon, including occupied by the fish, and extended low- 32 °C (90 °F); dissolved oxygen levels perennial streams that may provide flow conditions coupled with higher not less than 5 mg/L (5 ppm), except critical thermal refuges to the sturgeon pollutant levels would likely result in under extreme conditions due to natural at the interface with the main channel, behavior changes within all life stages, causes or downstream of existing especially during times when river but could be particularly detrimental to hydroelectric impoundments, where it flows are at abnormally low levels (e.g., early life stages (e.g., eggs, larvae, and can range from 5 mg/L to 4 mg/L (5 ppm during droughts). Therefore, prior to juveniles). to 4 ppm); and pH (a measure of acidity) channel-disturbing activities, these Stable river bottoms also are required within the range of 6.0 to 8.5. areas should be identified and by the sturgeon. The presence of stable precautions should be taken to ensure river bottoms has been associated with Special Management Considerations or that the integrity of these areas is the recent and historical captures of Protections maintained. Minimizing the effects of sturgeon in the Alabama and Tombigbee When designating critical habitat, we navigational dredging and Rivers. Hartfield and Garner (1998, p. 6) assess whether the specific areas within channelization (past evidence of which documented the presence of stable the geographical area occupied by the can be seen throughout the historical substrates located between dredge and species at the time of listing contain the range of the sturgeon) can be disposal sites in the lower Alabama features essential to the conservation of accomplished by avoiding the removal River. These included areas with stable the species that may require special of consolidated bed material and rock sand and gravel river bottoms, and management consideration or walls, and consulting with the Service bedrock walls. The presence of mussel protections. It is recognized that on proper disposal areas. beds and a diverse and dense insect numerous activities in and adjacent to Long sections of free-flowing habitat, community provide an indication that the unit designated as critical habitat, as as discussed in the fourth PCE, are channel bottoms are relatively stable described in this final rule, may affect necessary for spawning migrations and

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development of larvae. Although we do Alabama and Mississippi. There are Project (at the base of Lake Moultrie on not have specific information on the records of Alabama sturgeon from the Cooper River), cooperators have exact length necessary for the Alabama nearly all the major rivers in the Mobile been attempting to move sturgeon sturgeon to successfully migrate and River Basin below the Fall Line, upstream via the navigation locks. develop, the best estimate we can make, including the Black Warrior, Although fish have not yet been shown from information on the pallid and Tombigbee, Alabama, Coosa, to move directly through the locks, shovelnose sturgeon, is that it could be Tallapoosa, Mobile, Tensaw, and researchers have manually captured greater than 150 km (93 mi). We also Cahaba Rivers (Burke and Ramsey 1985, sturgeon below the dam and then recognize that although there are 524 p. 1). However, over the last century, the moved them upstream of the lock, after river kilometers (326 river miles) in the species has disappeared from at least 85 which they migrated to areas current designation, there may not be percent of its historical range, and since approximately 161 km (100 mi) long enough stretches of free-flowing the 1960s has experienced a significant upstream where spawning had been habitat to completely meet this decline in the remaining range. documented (Finney et al. 2006). requirement, but as we discussed under Recent collections (since 1990) of the With migration routes impeded, comment #10, this is the best remaining Alabama sturgeon are confined to the isolated subpopulations of Alabama habitat we have left. We will continue lower Alabama River from its sturgeon are unable to successfully to work with partners and seek every confluence with the Tombigbee River recruit adequate numbers to replenish opportunity (e.g., fish passage) to upstream to R.F. Henry Lock and Dam, the population. Reduced numbers of address these issues and work towards including the lower Cahaba River (Rider recruited sturgeon and surviving adult increasing the length of free-flowing and Hartfield 2007, p. 492). The entire fish can become more vulnerable to habitat that currently exists in the historical range of the Alabama sturgeon localized declines in water and habitat Alabama River. is now controlled by a series of more quality caused by hydropower releases, than 25 large locks or dams. These local riverine and land management Criteria Used To Identify Critical manmade structures have resulted in a practices, or by polluted discharges. It is Habitat series of impoundments that are unlikely that Alabama sturgeon habitat As required by section 4(b) of the Act, interspersed with free-flowing reaches and life cycle requirements can be met we used the best scientific and of varying lengths. Within the Alabama in long stretches of low flow, such as commercial data available to designate sturgeon’s historical range there are those that exist in the impounded areas critical habitat. We only designate areas three dams on the Alabama River of the river, where decreased flows outside the geographical area occupied (completed between 1969 and 1971), typically cause silt and other fine by a species when a designation limited two on the Black Warrior River sediments to accumulate over bottom to its present range would be inadequate (completed by 1971), and six on the habitats, creating unsuitable conditions to ensure the conservation of the species Tombigbee River (completed between for spawning, feeding, and larval growth (50 CFR 424.12(e)). The Alabama 1955 and 1985). These 11 dams alone and development. sturgeon is extremely rare. Despite have impounded and fragmented more The Alabama sturgeon is considered extensive and intensive efforts in the than 970 km (602 mi) of riverine habitat extirpated from the upper Alabama, decade prior to its listing, only eight once occupied by sturgeon. Prior to Black Warrior, Tombigbee, Coosa, Alabama sturgeon were captured, or construction of these structures, Tallapoosa, Mobile, and Tensaw Rivers. reported captured and released. All sturgeon could move freely between The Upper Alabama is isolated by river sturgeons are migratory and may feeding areas, from feeding areas to sites Robert F. Henry Lock and Dam, and this migrate hundreds of kilometers to that were suitable for spawning and reach of the river is essentially spawn, and newly hatched larvae may development of embryos, and larvae had impounded to the confluence of the drift hundreds of kilometers before abundant free-flowing riverine habitat to Coosa and Tallapoosa Rivers, and does settling. Therefore, connectivity of develop. not contain appropriate habitat for the spawning, juvenile, and adult feeding The locks and dams that impound the conservation of the Alabama sturgeon. and developmental habitats is necessary river constitute barriers to sturgeon Sturgeon have not been collected from for the conservation of the species. passage. Although fish species that the Black Warrior, Coosa, Tallapoosa, or We began our analysis by evaluating occupy the middle of the water column Tombigbee Rivers in more than 30 the Alabama sturgeon in the context of (e.g., shad, catfishes, paddlefish) could, years. With the exception of the extreme its distribution throughout the historical and do, pass through the locks while lower Tombigbee River, all of these range to determine what portion of the they are being operated, evidence areas are isolated from currently range must be included to ensure suggests that sturgeon do not pass occupied river reaches, and their conservation of the species. We through the lock chambers during riverine habitats are impounded and considered several factors in this normal lockages. Most adult sturgeons, highly fragmented by multiple large evaluation: (1) Inclusion of reaches that including the Alabama sturgeon, are river dams. Although some isolated provide the highest likelihood of benthic (bottom-dwelling) cruisers, and areas within these drainages may embryo and juvenile development, (2) are not likely to move up in the water contain some of the appropriate habitat inclusion of reaches that contain column to scale physical hurdles (Cooke features for Alabama sturgeon, their suitable spawning habitat, and (3) et al. 2002, p. 108). The lock chambers limited extent and the lack of continuity inclusion of areas that provide at Millers Ferry and Claiborne Locks or accessibility to other habitats limits protection of the species during low and Dams have upper and lower sills their value to the species. flow periods and other catastrophic which form a rather large hurdle (about The Mobile, Tensaw, and lower events. 9 m (30 ft) above the river floor at the Tombigbee Rivers are currently The historical range of the Alabama upper end of Miller Ferry) for sturgeon accessible to Alabama sturgeon; sturgeon included nearly every major moving upstream and downstream. however, there have been no confirmed basin in the Mobile River basin However, recent work with shortnose collections of the species in more than downstream of the Fall Line, comprising sturgeon could help develop promising 20 years. In addition, the natural nearly 1,600 km (994 mi) of riverine new strategies for Alabama sturgeon fish hydrograph of the lower Mobile Basin habitat in the Mobile River Basin in passage. For instance, at the Pinopolis has been radically altered by multiple

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navigation and hydropower dams on the should cover the area occupied by the by buildings, pavement, and other Tombigbee River, and the flows are species, we assessed the critical life structures, because such lands lack seasonally highly variable. These areas history components of Alabama PCEs for the Alabama sturgeon. The may be occasionally used or visited by sturgeon as they relate to habitat. scale of the maps we prepared under the subadult or adult Alabama sturgeon; Alabama sturgeon use the rivers for parameters for publication within the however, there is no recent evidence spawning, larval and juvenile feeding Code of Federal Regulations may not that this is occurring and little historical and development, adult resting, feeding, reflect the exclusion of such developed evidence of such use. Although some and staging, and to move between the lands. Any such lands inadvertently left habitat features occur in these river areas that support these components. inside critical habitat boundaries shown reaches, their value in conservation of Therefore, all areas meeting these on the maps of this final rule have been the species is not known. requirements were considered for excluded by text in the rule and are not At the time of listing, we considered inclusion. designated as critical habitat. Therefore, the Alabama River from south of We then investigated the habitat types a Federal action involving these lands Miller’s Ferry Lock and Dam to the that support these life history will not trigger section 7 consultation confluence of the Tombigbee River to be components and where these habitat with respect to critical habitat and the occupied. Shortly after publication of areas are located. We evaluated requirement of no adverse modification the listing rule, an Alabama sturgeon empirical data (including that gathered unless the specific action would affect was captured and released at river mile from recent radiotelemetry), recent the PCEs in the adjacent critical habitat. 8.5 in the Cahaba River. This capture of channel bathymetry data (collected by We are designating as critical habitat an adult sturgeon indicated that this the USACE), as well as published and lands that we have determined to be area also was occupied at the time of unpublished literature. These habitat occupied at the time of listing and listing, given that the fish could not components are described in the contain, or have the potential to contain, have reached this area from other Primary Constituent Elements section of sufficient PCEs to support life history sections of the river due to the lock and this final rule. functions essential for the conservation dam arrangement (see the Riverine To determine which areas should be of the species. Flows and Channel Stability section), designated as critical habitat, we then The Alabama and Cahaba Rivers and would have been present at the time evaluated where the necessary physical Critical Habitat Unit was designated the rule was published in the Federal and biological features of Alabama based on sufficient PCEs being present Register (May 5, 2000). Given the fish’s sturgeon habitat occur within the areas to support Alabama sturgeon life proximity to the mouth of the Cahaba occupied at the time of listing. Detailed processes. Some segments of this unit River and the lack of barriers with the location data are included in the unit contain all PCEs and supported multiple Alabama River section located between description in the Final Critical Habitat life processes. Some segments contained R.F. Henry Lock and Dam and the Designation section of this final rule. only a portion of the PCEs necessary to Millers Ferry Lock and Dam, we believe We have determined that these areas support the Alabama sturgeon’s the fish are likely to use all of these occur from the Alabama River, at its particular use of that habitat. areas, and, therefore, we consider these confluence with the Tombigbee River, areas occupied at the time of listing. upstream to R.F. Henry Lock and Dam. Final Critical Habitat Designation There is some evidence of past upstream This also includes the Cahaba River We are designating one contiguous spawning runs in the Cahaba River as upstream to U.S. Highway 82 near the section of the Alabama River and a well (Williams and Clemmer 1991, p. Fall Line in Bibb County. All of these portion of the lower Cahaba River as one 27). Based on historical information and areas support one or more of the PCEs critical habitat unit for Alabama recent collections, we consider all of the and are accessible to sturgeon (i.e., not sturgeon. The areas we describe below following areas to have been occupied at entirely blocked by dams). All life stages constitute our current best assessment at listing, as well as currently occupied: are associated with flowing waters and this time of areas that meet the The Alabama River from R.F. Henry other features characteristic of free- definition of critical habitat for the Lock and Dam downstream to the flowing riverine habitats. Nearly the Alabama sturgeon. The single unit we confluence of the Tombigbee River, and entire length of the Alabama and Cahaba are designating as critical habitat is the the Cahaba River from its confluence River currently meet these Alabama River from its confluence with with the Alabama River upstream to requirements. This area is being the Tombigbee River, Clarke and U.S. Highway 82, which is close to the designated as critical habitat to ensure Baldwin Counties, Alabama, upstream Fall Line at Centreville, Alabama. Given adequate protection of spawning sites, to R.F. Henry Lock and Dam, Autauga the lack of appropriate habitat habitat needed for juvenile and Lowndes Counties, Alabama; and elsewhere within the species’ historical development, and movement of adult the Cahaba River from its confluence range, we conclude that this final sturgeon to and from spawning areas. with the Alabama River upstream to designation should include all habitat When determining critical habitat U.S. Highway 82 near the Fall Line in occupied at the time of listing. boundaries within this final rule, we Bibb County, Alabama. Table 1 shows Once we determined that the proper made every effort to avoid including the occupied unit, land ownership, and scale of the critical habitat designation developed areas such as lands covered approximate area.

TABLE 1—ALABAMA STURGEON FINAL CRITICAL HABITAT UNIT: OCCUPANCY, SIZE, AND LAND OWNERSHIP

Size of unit in Critical habitat unit Occupied at time of Currently occupied kilometers Land ownership by type listing (miles)

Alabama and Cahaba Rivers ...... yes ...... yes ...... 524 (326) State.

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We present a brief description of the the Oakmulgee Division encompasses a requirements of section 7(a)(2) through unit and reasons why it meets the total of 63,484 hectares (ha) (156,871 our issuance of: definition of critical habitat for the acres (ac)), there are only about 9,952 ha (1) A concurrence letter for Federal Alabama sturgeon, below. (24,591 ac) that are directly adjacent to actions that may affect, but are not the Cahaba River. The Barton Beach likely to adversely affect, listed species Unit: Alabama and Cahaba Rivers, or critical habitat; or Alabama Reserve, a small tract owned by The Nature Conservancy, encompasses 45 ha (2) A biological opinion for Federal The critical habitat unit encompasses (112 ac) and covers approximately 1,150 actions that may affect, and are likely to 524 km (326 mi) of river channel. The m (3,773 ft) along the Cahaba River. adversely affect, listed species or critical portion of river channel in the Alabama This unit meets the definition of critical habitat. River extends 394 km (245 mi) from its habitat based on the discussion above When we issue a biological opinion confluence with the Tombigbee River, and contains all PCEs. This unit was concluding that a project is likely to Baldwin and Clarke Counties, Alabama, occupied at the time of listing and is jeopardize the continued existence of a upstream to R.F. Henry Lock and Dam, currently occupied. Special listed species or destroy or adversely Autauga and Lowndes Counties, management of the PCEs for the modify critical habitat, we also provide Alabama; and the portion of river Alabama sturgeon and its habitat may be reasonable and prudent alternatives to channel in the Cahaba River extends required for the following threats: Low- the project, if any are identifiable. We 130 km (81 mi) from its confluence with flow conditions, detrimental changes in define ‘‘reasonable and prudent the Alabama River, Dallas County, water quality, reduction in the amount alternatives’’ at 50 CFR 402.02 as Alabama, upstream to U.S. Highway 82, of free-flowing habitat, and detrimental alternative actions identified during Bibb County, Alabama. The Alabama changes to the morphology or stability consultation that: and Cahaba Rivers are the last known of the river channel. (1) Can be implemented in a manner areas that still support the sturgeon, and consistent with the intended purpose of both were occupied at the time of Effects of Critical Habitat Designation the action, listing. This was recently confirmed by (2) Can be implemented consistent the 2007 collection of an individual Section 7 Consultation with the scope of the Federal agency’s from the Alabama River below Section 7(a)(2) of the Act requires legal authority and jurisdiction, Claiborne Lock and Dam, and the 2000 Federal agencies, including the Service, (3) Are economically and collection of an individual sturgeon to ensure that actions they fund, technologically feasible, and from the lower Cahaba River (ADCNR authorize, or carry out are not likely to (4) Would, in the Director’s opinion, pers. comm. 2007). Although the destroy or adversely modify critical avoid jeopardizing the continued Alabama River, within this unit, habitat. Decisions by the Fifth and existence of the listed species or contains two physical barriers Ninth Circuits Court of Appeals have destroying or adversely modifying (Claiborne and Millers Ferry Locks and invalidated our definition of critical habitat. Reasonable and prudent alternatives Dams), it has several PCEs and has the ‘‘destruction or adverse modification’’ can vary from slight project potential to support all of the PCEs to (50 CFR 402.02) (see Gifford Pinchot modifications to extensive redesign or sustain this extremely rare fish. The Task Force v. U.S. Fish and Wildlife relocation of the project. Costs single critical habitat unit includes, for Service, 378 F.3d 1059 (9th Cir. 2004) associated with implementing a each river or stream listed, the channel and Sierra Club v. U.S. Fish and reasonable and prudent alternative are between the ordinary high water mark Wildlife Service et al., 245 F.3d 434, 442 similarly variable. on each bank, which is defined in 33 (5th Cir. 2001)), and we do not rely on CFR 329.11 as ‘‘the line on the shore Regulations at 50 CFR 402.16 require this regulatory definition when established by the fluctuations of water Federal agencies to reinitiate analyzing whether an action is likely to and indicated by physical consultation on previously reviewed destroy or adversely modify critical characteristics such as clear, natural line actions in instances where we have habitat. Under the statutory provisions impressed on the bank; shelving; listed a new species or subsequently of the Act, we determine destruction or changes in the character of the soil; designated critical habitat that may be adverse modification on the basis of destruction of terrestrial vegetation; the affected and the Federal agency has whether, with implementation of the presence of litter and debris; or other retained discretionary involvement or proposed Federal action, the affected appropriate means that consider the control over the action (or the agency’s critical habitat would remain functional characteristics of the surrounding discretionary involvement or control is areas.’’ The distances between (or retain those physical and biological authorized by law). Consequently, landmarks marking the upstream and features that relate to the ability of the Federal agencies may sometimes need to downstream boundaries of the unit are area to periodically support the species) request reinitiation of consultation with given in kilometers and equivalent to serve its intended conservation role us on actions for which formal miles, as measured by tracing the for the species. consultation has been completed, if thalweg (a line connecting the lowest If a species is listed or critical habitat those actions with discretionary points of successive cross sections) of is designated, section 7(a)(2) of the Act involvement or control may affect the stream, not the straight-line requires Federal agencies to ensure that subsequently listed species or distance. River miles referenced in this activities they authorize, fund, or carry designated critical habitat. rule were taken from a USACE 1985 out are not likely to jeopardize the Federal activities that may affect stream mileage table. continued existence of the species or to Alabama sturgeon or its designated The river channel within the entire destroy or adversely modify its critical critical habitat require section 7 unit is owned by the State of Alabama, habitat. If a Federal action may affect a consultation under the Act. Activities and the vast majority of adjacent lands listed species or its critical habitat, the on State, Tribal, local, or private lands are under private ownership, with the responsible Federal agency (action requiring a Federal permit (such as a exception of a portion of the Cahaba agency) must enter into consultation permit from the USACE under section River that includes Talladega National with us. As a result of this consultation, 404 of the Clean Water Act (33 U.S.C. Forest (Oakmulgee Division). Although we document compliance with the 1251 et seq.) or a permit from us under

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section 10 of the Act) or involving some determine if they may affect the critical Exemptions and Exclusions other Federal action (such as funding habitat, and conclusions could be Application of Section 4(a)(3) of the Act from the Federal Highway dependent, in part, on intervening flows Administration, Federal Aviation (e.g., Catoma Creek, Cahaba River), The National Defense Authorization Administration, or the Federal water temperature, and dissolved Act for Fiscal Year 2004 (Pub. L. 108– Emergency Management Agency) are oxygen content in the Alabama River 136) amended the Act to limit areas subject to the section 7 consultation downstream of Montgomery. Dependent eligible for designation as critical process. Federal actions not affecting on these factors and conditions in the habitat. Specifically, section 4(a)(3)(B)(i) listed species or critical habitat, and river at the time of the consultation, a of the Act (16 U.S.C. 1533(a)(3)(B)(i)) actions on State, Tribal, local, or private Not Likely to Adversely Affect now provides: ‘‘The Secretary shall not lands that are not Federally funded, Determination could still be possible. designate as critical habitat any lands or authorized, or permitted, do not require other geographical areas owned or section 7 consultations. (2) Actions that would significantly controlled by the Department of alter the morphology and stability of the Defense, or designated for its use, that Application of the ‘‘Adverse river channel. Such activities would Modification’’ Standard are subject to an integrated natural include, but are not limited to, dredging resources management plan prepared The key factor related to the adverse and mining of consolidated bed under section 670a of this title, if the modification determination is whether, material, impoundments, road and Secretary determines in writing that with implementation of the proposed bridge construction, and destruction of such plan provides a benefit to the Federal action, the affected critical riparian vegetation. These activities species for which critical habitat is habitat would continue to serve its could eliminate suitable substrates for proposed for designation.’’ intended conservation role for the egg deposition and development, There are no Department of Defense species, or retain those PCEs that relate increase turbidity, and initiate erosion lands with a completed integrated to the ability of the area to periodically natural resources management plan support the species. Activities that may along the banks, which could increase within the designated critical habitat destroy or adversely modify critical water temperatures and reduce the designation. habitat are those that alter the PCEs to width of the riparian zone. an extent that appreciably reduces the (3) Actions that would significantly Application of Section 4(b)(2) of the Act conservation value of critical habitat for decrease the amount of currently Section 4(b)(2) of the Act states that Alabama sturgeon. As discussed above, available free-flowing habitat. Such the Secretary must designate and revise the role of critical habitat is to support activities would include, but are not the life history needs of the species and critical habitat on the basis of the best limited to, construction and operation of available scientific data after taking into provide for the conservation of the dams, water withdrawals, further species. consideration the economic impact, alteration of flow regimes, and national security impact, and any other Section 4(b)(8) of the Act requires us diversions. These activities could to briefly evaluate and describe, in any relevant impact of specifying any further minimize the currently available proposed or final regulation that particular area as critical habitat. The length of free-flowing habitat to support designates critical habitat, activities Secretary may exclude an area from involving a Federal action that may spawning migrations and development critical habitat if he determines that the destroy or adversely modify such of embryos and larvae. benefits of such exclusion outweigh the habitat, or that may be affected by such (4) Actions that would significantly benefits of specifying such area as part designation. alter water chemistry beyond what is of the critical habitat, unless he Activities that, when carried out, required in the State of Alabama water determines, based on the best scientific funded, or authorized by a Federal quality standards. Such activities would data available, that the failure to agency, may affect critical habitat and include, but are not limited to, the designate such area as critical habitat therefore should result in consultation discharge of chemicals, biological will result in the extinction of the species. In making that determination, for the Alabama sturgeon include, but pollutants, nutrients, and other toxic the statute on its face, as well as the are not limited to: substances that originate from non-point legislative history, are clear that the (1) Actions that would significantly or point source discharges, and altered alter the existing flow regime to the Secretary has broad discretion regarding flow patterns that could lower dissolved point at which the habitat could no which factor(s) to use and how much oxygen levels. These substances could longer sustain normal behavior and weight to give to any factor. promote species recovery. Such directly, or through accumulation in Under section 4(b)(2) of the Act, we activities could include, but are not tissue, impair sturgeon behavior, may exclude an area from designated limited to, construction and operation of reproduction, and growth. critical habitat based on economic dams, water withdrawals, and We consider the unit designated as impacts, impacts on national security, channelization. These activities could critical habitat to contain features or any other relevant impacts. In eliminate or reduce spawning habitats, essential to the conservation of Alabama considering whether to exclude a impair the development of embryos and sturgeon and which require special particular area from the designation, we larvae, impede or eliminate normal management. The unit is within the must identify the benefits of including migration patterns, reduce the ability of geographic range of the species, it was the area in the designation, identify the the river to adequately assimilate occupied by the species at the time of benefits of excluding the area from the pollution, and compromise the integrity listing, and it is currently occupied. designation, and determine whether the and utility of cool water refuges Federal agencies already consult with us benefits of exclusion outweigh the (perennial tributaries). In addition, on activities that may affect the species, benefits of inclusion. If based on this flows less than 4,640 cubic feet per to ensure that their actions do not analysis, we make this determination, second, as determined by the USACE at jeopardize the continued existence of then we can exclude the area only if Montgomery, would need to be Alabama sturgeon. such exclusion would not result in the evaluated on an individual basis to extinction of the species.

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Exclusions Based on Economic Impacts makers can use this information to A copy of the final economic analysis Under section 4(b)(2) of the Act, we assess whether the effects of the with supporting documents may be consider the economic impacts of designation might unduly burden a obtained by contacting the Alabama specifying any particular area as critical particular group or economic sector. Ecological Services Field Office (see habitat. In order to consider economic Finally, the FEA looks retrospectively at ADDRESSES) or by downloading from the impacts, we prepared a draft economic costs that have been incurred since 2000 Internet at http://www.regulations.gov. (year of the species’ listing; 65 FR analysis, which we made available for Exclusions Based on National Security 26438), and considers those costs that public review on December 30, 2008 (73 Impacts FR 79770), based on the May 27, 2008, may occur in the 20 years following the proposed rule (73 FR 30361). We designation of critical habitat, which Under section 4(b)(2) of the Act, we accepted comments on the draft analysis was determined to be the appropriate consider whether there are lands owned until February 9, 2009. Following the period for analysis because limited or managed by the Department of close of the comment period, a final planning information was available for Defense (DOD) where a national security analysis of the potential economic most activities to forecast activity levels impact might exist. In preparing this effects of the designation was developed for projects beyond a 20-year timeframe. final rule, we have determined that the taking into consideration the public The FEA quantifies economic impacts of lands within the designation of critical comments and any new information. Alabama sturgeon conservation efforts habitat for Alabama sturgeon are not The intent of the FEA is to quantify associated with the following categories owned or managed by the DOD; the economic impacts of all potential of activity: water management, activities therefore, we anticipate no impact to conservation efforts for Alabama that impact water quality, dredging national security. There are no areas sturgeon. The economic impact of the activities and other impacts (e.g., bridge excluded from this final designation final critical habitat designation is replacement, management plans, natural based on impacts on national security. analyzed by comparing scenarios both gas pipelines, etc.). Exclusions Based on Other Relevant ‘‘with critical habitat’’ and ‘‘without Present value baseline impacts Impacts critical habitat.’’ The ‘‘without critical associated with potential future Under section 4(b)(2) of the Act, we habitat’’ scenario represents the baseline conservation efforts for the sturgeon are consider any other relevant impacts, in for the analysis, considering protections estimated to be $636,000 ($42,700 addition to economic impacts and already in place for the species (e.g., annualized), assuming a 3 percent impacts on national security. We under the Federal listing and other discount rate, or $466,000 ($44,000 consider a number of factors, including Federal, State, and local regulations). annualized), assuming a 7 percent whether the landowners have developed The baseline, therefore, represents the discount rate, over the next 20 years. any HCPs or other management plans costs incurred regardless of whether Baseline impacts quantified in this for the area, or whether there are critical habitat is designated. The ‘‘with analysis are 40 percent project conservation partnerships that would be critical habitat’’ scenario describes the modifications for dredging activities. All encouraged by designation of, or incremental impacts associated remaining baseline impacts are exclusion from, critical habitat. In specifically with the designation of administrative costs of section 7 addition, we look at any Tribal issues, critical habitat for the species. The consultation. Impacts to dredging and consider the government-to- incremental conservation efforts and activities represent roughly 58.9 percent government relationship of the United associated impacts are those not of forecast post-designation baseline States with Tribal entities. We also expected to occur absent the designation costs. Impacts associated with water consider any social impacts that might of critical habitat for the species. In management represent 17.1 percent of occur because of the designation. other words, the incremental costs are the total, and impacts to activities that In preparing this final rule, we have those attributable solely to the may affect water quality represent 15.1 determined that there are currently no designation of critical habitat above and percent of the total. Present value HCPs or other management plans for beyond the baseline costs; these are the incremental impacts are anticipated to Alabama sturgeon, and the final costs we consider in the final result entirely from the added designation does not include any Tribal designation of critical habitat. The administrative requirements of forecast lands or trust resources. We anticipate analysis looks retrospectively at section 7 consultations, and are no impact to Tribal lands, partnerships, baseline impacts incurred since the estimated to be $93,800 ($6,300 or HCPs from this critical habitat species was listed, and forecasts both annualized), assuming a 3 percent designation. There are no areas baseline and incremental impacts likely discount rate, or $71,200 ($6,720 excluded from this final designation to occur with the designation of critical annualized), assuming a 7 percent based on other relevant impacts. habitat. discount rate. The FEA also addresses how potential Our economic analysis did not Required Determinations economic impacts are likely to be identify any disproportionate costs that distributed, including an assessment of are likely to result from the designation. Regulatory Planning and Review— any local or regional impacts of habitat Following a consideration of the Executive Order 12866 conservation and the potential effects of potential conservation benefits to the The Office of Management and Budget conservation activities on government species from the designation of critical (OMB) has determined that this rule is agencies, private businesses, and habitat and the potential economic not significant and has not reviewed individuals. The FEA measures lost impact, we have determined that there this rule under Executive Order 12866 economic efficiency associated with is a great conservation benefit to (E.O. 12866). OMB bases its residential and commercial maintaining all areas within the determination upon the following four development and public projects and designation. Consequently, we are not criteria: activities, such as economic impacts on excluding any areas from this (1) Whether the rule will have an water management and transportation designation of critical habitat for the annual effect of $100 million or more on projects, Federal lands, small entities, Alabama sturgeon based on economic the economy or adversely affect an and the energy industry. Decision- impacts. economic sector, productivity, jobs, the

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environment, or other units of the might trigger regulatory impacts under impacts related to: (1) Water government. this rule, as well as the types of project management, (2) water quality, (3) (2) Whether the rule will create modifications that may result. In dredging, and (4) other activities. inconsistencies with other Federal general, the term ‘‘significant economic All incremental impacts quantified in agencies’ actions. impact’’ is meant to apply to a typical the economic analysis are (3) Whether the rule will materially small business firm’s business administrative impacts of conducting affect entitlements, grants, user fees, operations. the forecasted section 7 consultations. loan programs or the rights and To determine if the rule could That is, the designation of critical obligations of their recipients. significantly affect a substantial number habitat is not forecasted to result in (4) Whether the rule raises novel legal of small entities, we consider the changes in operations and management or policy issues. number of small entities affected within of the water-dependent land use Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities activities considered in this analysis as et seq.) (e.g., water management, water quality, discussed in Sections 3 through 6. Small dredging, and other activities). We entities may, however, be required to Under the Regulatory Flexibility Act apply the ‘‘substantial number’’ test spend additional time considering (RFA; 5 U.S.C. 601 et seq.), as amended individually to each industry to critical habitat during section 7 by the Small Business Regulatory determine if certification is appropriate. consultation. These incremental, Enforcement Fairness Act (SBREFA) of However, the SBREFA does not administrative impacts are the focus of 1996 (5 U.S.C. 801 et seq.), whenever an explicitly define ‘‘substantial number’’ this analysis of impacts to small entities. agency must publish a notice of or ‘‘significant economic impact.’’ For development, construction, and rulemaking for any proposed or final Consequently, to assess whether a dredging activities, the threshold is rule, it must prepare and make available ‘‘substantial number’’ of small entities is expressed in terms of annual revenues. for public comment a regulatory affected by this designation, this While this threshold marks the high-end flexibility analysis that describes the analysis considers the relative number revenue estimate for the potentially effects of the rule on small entities of small entities likely to be impacted in affected small businesses, impacts per (small businesses, small organizations, an area. In some circumstances, entity as described in the exhibit are and small government jurisdictions). especially with critical habitat significantly less than the threshold However, no regulatory flexibility designations of limited extent, we may estimates. Conservatively assuming a analysis is required if the head of an aggregate across all industries and single business is associated with all of agency certifies the rule will not have a consider whether the total number of the forecasted impacts for each activity, significant economic impact on a small entities affected is substantial. In the greatest impact per entity would be substantial number of small entities. estimating the number of small entities incurred by a business that affects water The SBREFA amended RFA to require potentially affected, we also consider quality. Note that the present-value, 20- Federal agencies to provide a whether their activities have any year impact of $5,570 to a single small certification statement of the factual Federal involvement. business is less than 0.01 percent of the basis for certifying that the rule will not Designation of critical habitat only small business annual revenue have a significant economic impact on affects activities authorized, funded, or thresholds in this case. a substantial number of small entities. carried out by Federal agencies. Some In addition to the incremental impacts In this final rule, we are certifying that kinds of activities are unlikely to have summarized in Exhibit A–1 of the FEA, the critical habitat designation for any Federal involvement and so will not Sections 3 and 4 of the analysis discuss Alabama sturgeon will not have a be affected by critical habitat potential impacts that may result from significant economic impact on a designation. In areas where the species providing greater river flow or substantial number of small entities. is present, Federal agencies already are complying with water quality standards The following discussion explains our required to consult with us under to benefit the sturgeon. rationale. section 7 of the Act on activities they While this analysis acknowledges that According to the Small Business authorize, fund, or carry out that may such changes may generate economic Administration, small entities include affect the Alabama sturgeon. Federal impacts, we indicated in an October 22, small organizations, such as agencies also must consult with us if 2008, memorandum (provided as independent nonprofit organizations; their activities may affect critical Appendix D in the FEA) that we cannot small governmental jurisdictions, habitat. Designation of critical habitat, reliably predict whether, when, or the including school boards and city and therefore, could result in an additional reasons, we may request these town governments that serve fewer than economic impact on small entities due conservation efforts. In the case that the 50,000 residents; as well as small to the requirement to reinitiate designation of critical habitat triggers businesses. Small businesses include consultation for ongoing Federal the request for these conservation manufacturing and mining concerns activities (see Application of the efforts, associated economic impacts with fewer than 500 employees, ‘‘Adverse Modification Standard’’ would be considered incremental and wholesale trade entities with fewer than section). therefore relevant to this discussion of 100 employees, retail and service In our final economic analysis of the impacts on small entities. In the case businesses with less than $5 million in critical habitat designation, we that we request higher river flows or annual sales, general and heavy evaluated the potential economic effects accelerated compliance with existing construction businesses with less than on small business entities resulting from water standards, small businesses may $27.5 million in annual business, conservation actions related to the be affected. The nature of these special trade contractors doing less than listing of the Alabama sturgeon and the potential impacts is presented in $11.5 million in annual business, and designation of critical habitat. The Sections 3 and 4 of the FEA. agricultural businesses with annual analysis is based on the estimated In summary, we considered whether sales less than $750,000. To determine impacts associated with the rulemaking this designation would result in a if potential economic impacts to these as described in Chapters 3 through 6 significant economic effect on a small entities are significant, we and Appendix A of the analysis and substantial number of small entities. consider the types of activities that evaluates the potential for economic Based on the above reasoning and

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currently available information, we action, and no Statement of Energy legally binding duty to avoid concluded that this rule would not Effects is required. destruction or adverse modification of result in a significant economic impact critical habitat rests squarely on the Unfunded Mandates Reform Act (2 on a substantial number of small Federal agency. Furthermore, to the U.S.C. 1501 et seq.) entities. Therefore, we are certifying that extent that non-Federal entities are the designation of critical habitat for In accordance with the Unfunded indirectly impacted because they Alabama sturgeon will not have a Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate significant economic impact on a seq.), we make the following findings: in a voluntary Federal aid program, the substantial number of small entities, (1) This rule will not produce a Unfunded Mandates Reform Act would and a regulatory flexibility analysis is Federal mandate. In general, a Federal not apply, nor would critical habitat not required. mandate is a provision in legislation, shift the costs of the large entitlement statute, or regulation that would impose programs listed above onto State Energy Supply, Distribution, or Use— an enforceable duty upon State, local, or governments. Executive Order 13211 Tribal governments, or the private (2) We do not believe that this rule On May 18, 2001, the President issued sector, and includes both ‘‘Federal will significantly or uniquely affect Executive Order 13211 (E.O. 13211, intergovernmental mandates’’ and small governments, because it will not ‘‘Actions Concerning Regulations That ‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 Significantly Affect Energy Supply, These terms are defined in 2 U.S.C. million or greater in any year; that is, it Distribution, or Use’’) on regulations 658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ that significantly affect energy supply, mandate’’ includes a regulation that under the Unfunded Mandates Reform distribution, and use. E.O. 13211 ‘‘would impose an enforceable duty Act. The designation of critical habitat requires agencies to prepare Statements upon State, local, or [T]ribal imposes no obligations on State or local of Energy Effects when undertaking governments,’’ with two exceptions. It governments. By definition, Federal certain actions. OMB has provided excludes ‘‘a condition of Federal agencies are not considered small guidance for implementing this assistance.’’ It also excludes ‘‘a duty entities, although the activities they Executive Order that outlines nine arising from participation in a voluntary fund or permit may be proposed or outcomes that may constitute ‘‘a Federal program,’’ unless the regulation carried out by small entities. As such, a significant adverse effect’’ when ‘‘relates to a then-existing Federal Small Government Agency Plan is not compared to not taking the regulatory program under which $500,000,000 or required. action under consideration. There are more is provided annually to State, currently two hydroelectric dams local, and Tribal governments under Takings—Executive Order 12630 (Robert F. Henry and Millers Ferry entitlement authority,’’ if the provision In accordance with E.O. 12630 Locks and Dams) located on portions of would ‘‘increase the stringency of (‘‘Government Actions and Interference the river within the critical habitat conditions of assistance’’ or ‘‘place caps with Constitutionally Protected Private designation. Although insufficient upon, or otherwise decrease, the Federal Property Rights’’), we have analyzed the information is available to estimate Government’s responsibility to provide potential takings implications of changes in the electricity production of funding,’’ and the State, local, or Tribal designating critical habitat for Alabama these facilities due to sturgeon governments ‘‘lack authority’’ to adjust sturgeon in a takings implications conservation efforts, it is unlikely that accordingly. At the time of enactment, assessment. Critical habitat designation any such changes would result in these entitlement programs were: does not affect landowner actions that decreased electricity production of one Medicaid; Aid to Families with do not require Federal funding or billion kilowatt-hours in even the worst Dependent Children work programs; permits, nor does it preclude drought year (when additional flows for Child Nutrition; Food Stamps; Social development of habitat conservation sturgeon conservation efforts would be Services Block Grants; Vocational programs or issuance of incidental take most needed). During the drought year Rehabilitation State Grants; Foster Care, permits to permit actions that do require of 2007, total electricity generation from Adoption Assistance, and Independent Federal funding or permits to go the 15 hydroelectric facilities in the Living; Family Support Welfare forward. The takings implications ACT Basin was roughly 2.19 billion Services; and Child Support assessment concludes that this kilowatt-hours. To reach the 1 billion Enforcement. ‘‘Federal private sector designation of critical habitat for kilowatt-hour reduction specified in mandate’’ includes a regulation that Alabama sturgeon does not pose Executive Order No. 13211, 2007 ‘‘would impose an enforceable duty significant takings implications for generation would need to be reduced by upon the private sector, except (i) a lands within or affected by the 46 percent. Although changes in the condition of Federal assistance or (ii) a designation. timing and magnitude of flows duty arising from participation in a throughout a given year for sturgeon voluntary Federal program.’’ Federalism—Executive Order 13132 conservation efforts may impact total The designation of critical habitat In accordance with E.O. 13132 electricity generation, total flow volume does not impose a legally binding duty (Federalism), this rule does not have over the course of that year will remain on non-Federal Government entities or significant Federalism effects. A unchanged. Any recommendations from private parties. Under the Act, the only Federalism assessment is not required. us are therefore unlikely to cause regulatory effect is that Federal agencies In keeping with Department of the reductions in generation of this must ensure that their actions do not Interior and Department of Commerce magnitude. As such, designation of destroy or adversely modify critical policy, we requested information from, critical habitat is not expected to lead to habitat under section 7. While non- and coordinated development of, this any of the adverse outcomes specified in Federal entities that receive Federal critical habitat designation with Executive Order No. 13211. As such, the funding, assistance, or permits, or that appropriate State resource agencies in designation of critical habitat is not otherwise require approval or Alabama. We received comments from expected to significantly affect energy authorization from a Federal agency for the State of Georgia, the Alabama Office supplies, distribution, or use. Therefore, an action, may be indirectly impacted of Water Resources, the Governor’s this action is not a significant energy by the designation of critical habitat, the Office for the State of Alabama, and the

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Alabama Department of Conservation on State or local governments, lands occupied at the time of listing that and Natural Resources, and we have individuals, businesses, or contain the features essential for the addressed them in the Summary of organizations. An agency may not conservation, and no unoccupied Tribal Comments and Recommendations conduct or sponsor, and a person is not lands that are essential for the section of the rule. The designation of required to respond to, a collection of conservation of the Alabama sturgeon. critical habitat in areas currently information unless it displays a Therefore, we are not designating occupied by the Alabama sturgeon may currently valid OMB control number. critical habitat for the Alabama sturgeon impose nominal additional regulatory National Environmental Policy Act (42 on Tribal lands. restrictions to those currently in place U.S.C. 4321 et seq.) and, therefore, may have little References Cited incremental impact on State and local It is our position that, outside the A complete list of all references cited governments and their activities. The jurisdiction of the U.S. Court of Appeals is available on the Internet at http:// designation may have some benefit to for the Tenth Circuit, we do not need to www.regulations.gov and upon request these governments, in that the areas that prepare environmental analyses as from the Alabama Ecological Services contain the physical and biological defined by NEPA (42 U.S.C. 4321 et Field Office (see FOR FURTHER features essential to the conservation of seq.) in connection with designating INFORMATION CONTACT). the species are more clearly defined, critical habitat under the Act. We and the PCEs of the habitat necessary to published a notice outlining our reasons Author(s) the conservation of the species are for this determination in the Federal The primary authors of this package specifically identified. This information Register on October 25, 1983 (48 FR are the staff of the Alabama Ecological does not alter where and what Federally 49244). This position was upheld by the Services Field Office. sponsored activities may occur. U.S. Court of Appeals for the Ninth However, it may assist local Circuit (Douglas County v. Babbitt, 48 List of Subjects in 50 CFR Part 17 governments in long-range planning F.3d 1495 (9th Cir. 1995), cert. denied Endangered and threatened species, (rather than having them wait for case- 516 U.S. 1042 (1996)). Exports, Imports, Reporting and by-case section 7 consultations to Government-to-Government recordkeeping requirements, occur). Relationship With Tribes Transportation. Civil Justice Reform—Executive Order In accordance with the President’s Regulation Promulgation 12988 memorandum of April 29, 1994, In accordance with E.O. 12988 (Civil ‘‘Government-to-Government Relations ■ Accordingly, we amend part 17, Justice Reform), the regulation meets the with Native American Tribal subchapter B of chapter I, title 50 of the applicable standards set forth in Governments’’ (59 FR 22951), E.O. Code of Federal Regulations, as set forth sections 3(a) and 3(b)(2) of the Order. 13175, and the Department of the below: We are designating critical habitat in Interior’s manual at 512 DM 2, we PART 17—[AMENDED] accordance with the provisions of the readily acknowledge our responsibility Act. This final rule uses standard to communicate meaningfully with ■ 1. The authority citation for part 17 property descriptions and identifies the recognized Federal Tribes on a continues to read as follows: physical and biological features government-to-government basis. In essential to the conservation of the accordance with Secretarial Order 3206 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Public Law subspecies within the designated areas of June 5, 1997, ‘‘American Indian Tribal Rights, Federal-Tribal Trust 99–625, 100 Stat. 3500; unless otherwise to assist the public in understanding the noted. habitat needs of the Alabama sturgeon. Responsibilities, and the Endangered Species Act,’’ we readily acknowledge ■ 2. In § 17.11(h), revise the entry for Paperwork Reduction Act of 1995 (44 our responsibilities to work directly ‘‘Sturgeon, Alabama’’ under ‘‘FISHES’’ U.S.C. 3501 et seq.) with Tribes in developing programs for in the List of Endangered and This rule does not contain any new healthy ecosystems, to acknowledge that Threatened Wildlife to read as follows: collections of information that require Tribal lands are not subject to the same approval by OMB under the Paperwork controls as Federal public lands, to § 17.11 Endangered and threatened Reduction Act of 1995 (44 U.S.C. 3501 remain sensitive to Indian culture, and wildlife. et seq.). This rule will not impose to make information available to Tribes. * * * * * recordkeeping or reporting requirements We determined that there are no Tribal (h) * * *

Species Vertebrate population Historic range where en- Status When listed Critical Special Common name Scientific name dangered or habitat rules threatened

******* FISHES

******* Sturgeon, Alabama Scaphirhynchus U.S.A. (AL, MS) NA E 697 17.95(e) NA suttkusi

*******

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■ 3. In § 17.95, amend paragraph (e) by (ii) River channel with stable sand (4) Critical habitat map unit. Data adding an entry for ‘‘Alabama sturgeon and gravel river bottoms, and bedrock layers defining the map unit were (Scaphirhynchus suttkusi),’’ in the same walls, including associated mussel beds. created on a base of USGS 7.5′ alphabetical order that the species (iii) Limestone outcrops and cut quadrangles, and the critical habitat unit appears in the table at § 17.11(h), to read limestone banks, large gravel or cobble was then mapped using Universal as follows: such as that found around channel Transverse Mercator (UTM) coordinates. training devices, and bedrock channel § 17.95 Critical habitat—fish and wildlife. walls that provide riverine spawning (5) Unit: Alabama and Cahaba Rivers; * * * * * sites with substrates suitable for embryo Baldwin, Monroe, Wilcox, Clarke, (e) Fishes deposition and development. Dallas, Lowndes, Autauga, Perry, and Bibb Counties, Alabama. * * * * * (iv) Long sections of free-flowing Alabama sturgeon (Scaphirhynchus water to allow spawning migrations and (i) The unit encompasses 524 km (326 suttkusi) development of embryos and larvae. mi) of river channel. The portion of (v) Water temperature not exceeding river channel in the Alabama River (1) Critical habitat unit is depicted for 32° Celsius (90° Fahrenheit); dissolved Baldwin, Monroe, Wilcox, Clarke, extends 394 km (245 mi) from its oxygen levels not less than 5 milligrams confluence with the Tombigbee River, Dallas, Lowndes, Autauga, Bibb, and per liter (mg/L) (5 parts per million Perry Counties, Alabama, on the map Baldwin and Clarke Counties, Alabama, (ppm)), except under extreme upstream to R.F. Henry Lock and Dam, below. conditions due to natural causes or (2) The primary constituent elements Autauga and Lowndes Counties, downstream of existing hydroelectric Alabama; and the portion of river of critical habitat for the Alabama impoundments, where it can range from sturgeon are: channel in the Cahaba River extends 5 mg/L to 4 mg/L (5 ppm to 4 ppm); and 130 km (81 mi) from its confluence with (i) A flow regime (i.e., the magnitude, pH within the range of 6.0 to 8.5. the Alabama River, Dallas County, frequency, duration, seasonality of (3) Critical habitat does not include Alabama, upstream to U.S. Highway 82, discharge over time) necessary to manmade structures (such as buildings, Bibb County, Alabama. maintain all life stages of the species in aqueducts, docks, dams, runways, the riverine environment, including roads, and other paved areas) and the (ii) Note: Map of Unit, Critical Habitat migration, breeding site selection, land or waterway on which they are for Alabama Sturgeon (Scaphirhynchus resting, larval development, and located existing within the legal suttkusi): Alabama and Cahaba Rivers, protection of cool water refuges (i.e., boundaries on the effective date of this follows: tributaries). rule. BILLING CODE 4310–55–P

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* * * * * Dated: May 21, 2009. Jane Lyder, Deputy Assistant Secretary, Fish and Wildlife and Parks. [FR Doc. E9–12517 Filed 6–1–09; 8:45 am] BILLING CODE 4310–55–C

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