[Federal Register Volume 60, Number 163 (Wednesday, August 23, 1995)]
[Rules and Regulations]
[Pages 43721-43723]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20935]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 222

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17


Endangered and Threatened Wildlife and Plants: Decision on 
Designation of Critical Habitat for the Gulf Sturgeon

AGENCIES: National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, Commerce; and Fish and Wildlife Service, 
Interior.

ACTION: Notice of decision on critical habitat designation.

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SUMMARY: The National Marine Fisheries Service (NMFS) and the U.S. Fish 
and Wildlife Service (FWS), collectively the Services, announce a 
decision on designation of critical habitat for the Gulf sturgeon 
(Acipenser oxyrinchus desotoi), a federally listed threatened species 
pursuant to the Endangered Species Act of 1973, as amended (Act). Based 
on lack of benefit to the species, the Services have determined that 
critical habitat designation is not prudent.

DATES: The finding announced in this notice was made on August 18, 
1995.

ADDRESSES: Information, comments, or questions should be submitted to 
the Field Supervisor, U.S. Fish and Wildlife Service, 6620 Southpoint 
Drive South, Suite 310, Jacksonville, Florida 32216. The administrative 
record supporting this decision is available for public inspection, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Dr. Michael M. Bentzien at the above 
address or telephone 904/232-2580.

SUPPLEMENTARY INFORMATION:

Background

    The Gulf sturgeon (Acipenser oxyrinchus (=oxyrhynchus desotoi), 
also known as the Gulf of Mexico sturgeon, is a nearly cylindrical fish 
with an extended snout, ventral mouth, chin barbels, and with the upper 
lobe of the tail longer than the lower. Adults range from 1.8-2.4 
meters (6-8 feet) in length, with adult females larger than males. It 
is a subspecies of Atlantic sturgeon, Acipenser oxyrinchus 
(=oxyrhynchus), and is distinguished from Acipenser oxyrinchus 
oxyrinchus, the East Coast subspecies, by its longer head, pectoral 
fins, and spleen. The Gulf sturgeon is restricted to the Gulf of Mexico 
and its drainages, primarily from the Mississippi River to the Suwannee 
River, including the States of Louisiana, Mississippi, Alabama, and 
Florida. Sporadic occurrences are known as far west as Texas (Rio 
Grande), and marine waters in Florida south to Florida Bay (Wooley and 
Crateau 1985, Reynolds 1993). As an anadromous species, the Gulf 
sturgeon migrates between fresh and salt water. For discussion of the 
ecology, life history, and threats to this subspecies, see the 
Services' September 30, 1991, final rule listing the Gulf sturgeon as a 
threatened species (56 FR 49653).
    Gilbert (1992) discovered that the specific scientific name of the 
Atlantic sturgeon had been ``. . . misspelled for over 100 years . . 
.'' and pointed out that it should be oxyrinchus, not the previously 
used oxyrhynchus. Both spellings are conjuncted in this proposed rule 
to acknowledge the correct zoological nomenclature and avoid confusion 
with previous Federal documents and literature references.
    Services' involvement with the Gulf sturgeon began with monitoring 
and other studies of the Apalachicola River population by the FWS 
Panama City, Florida, Fisheries Assistance Office in 1979. The fish was 
included as a category 2 species in the FWS December 30, 1982 (47 FR 
58454) and September 18, 1985 (50 FR 37958) vertebrate review notices 
and in the January 6, 1989 (54 FR 554) animal notice of review. 
Category 2 designation was given to those species for which listing as 
threatened or endangered is possibly appropriate, but for which 
additional biological information is needed to support a proposed rule. 
In 1980, the FWS Jacksonville, Florida Office contracted a status 
survey report on the Gulf sturgeon (Hollowell 1980). The report 
concluded that the fish had been reduced to a small population due to 
overfishing and habitat loss. In 1988, the Panama City, Florida Office 
completed a report (Barkuloo 1988) on the conservation status of the 
Gulf sturgeon, recommending that the subspecies be listed as a 
threatened species pursuant to the Act.
    The FWS and NMFS jointly proposed the Gulf sturgeon for listing as 
a threatened species on May 2, 1990 (55 FR 18357). In that proposed 
rule, the Services maintained that designation of critical habitat was 
``not prudent'' due to the sturgeon's broad range and the lack of 
knowledge of specific areas utilized by the subspecies. The final rule 
for the Gulf sturgeon was published 

[[Page 43722]]
on September 30, 1991 (56 FR 49653). It included special rules 
promulgated under section 4(d) of the Act for a threatened species, 
allowing taking of Gulf sturgeon in accordance with applicable state 
laws, for educational and scientific purposes, the enhancement of 
propagation or survival of the species, zoological exhibition, and 
other conservation purposes. The final rule found that critical habitat 
designation ``may be prudent but is not now determinable.'' Further 
comments on the critical habitat issue were solicited from all 
interested parties following listing. A final decision on designation 
of critical habitat was to have been made by May 2, 1992.
    On August 11, 1994, the Sierra Club Legal Defense Fund, Inc. 
(Fund), on behalf of the Orleans Audubon Society and Florida Wildlife 
Federation, gave written notice of their intent to file suit against 
the Department of the Interior for failure to designate critical 
habitat for the Gulf sturgeon within the statutory time limits 
established under the Act. The Fund filed suit (Orleans Audubon Society 
vs Babbitt, Civ. No. 94-3510 (E.D. La)) following a combined meeting 
and teleconference with the FWS on October 11, 1994.
    Critical habitat is defined in section 3(5)(A) of the Act as ``(i) 
the specific areas within the geographic area occupied by a species . . 
. on which are found those physical or biological features (I) 
Essential to the conservation of the species, and (II) that may require 
special management considerations or protection; and (ii) specific 
areas outside the geographical area occupied by a species at the time 
it is listed . . . upon determination by the Secretary that such areas 
are essential for the conservation of the species.'' The term 
``conservation,'' as defined in section 3(3) of the Act, means ``. . . 
to use and the use of all methods and procedures which are necessary to 
bring any endangered or threatened species to the point at which the 
measures provided pursuant to this Act are no longer necessary,'' i.e., 
the species is recovered and can be removed from the list of endangered 
and threatened species. The Act requires that critical habitat be 
designated at the time any species is listed as an endangered or 
threatened species, to the extent prudent and determinable. If a final 
regulation listing a species finds that critical habitat is not 
determinable, a decision on whether to designate critical habitat must 
be made within one additional year (within two years of the date on 
which the species was proposed for listing).
    The Services' criteria for designating critical habitat (50 CFR 
part 424.12) state that a designation of critical habitat is not 
prudent if either of the two following situations exist:
    1. The species is threatened by taking or other human activity, and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species, or
    2. Such designation of critical habitat would not be beneficial to 
the species.
    The Services' determination not to declare critical habitat for 
this species is based on the lack of benefit to the species because 
there are existing conservation measures in place and other management 
efforts that provide the species with protection above and beyond that 
of the Act. Therefore, for this reason, the designation of critical 
habitat will not provide additional protection for the species. A 
detailed explanation follows.

1. Existing Conservation Measures

    As required in section 4(f) of the Act and in accordance with 
established regulations, the Services have proceeded with the 
development of a recovery plan for this species. A draft plan was 
prepared and circulated for comment and a final plan is ready for 
approval in the near future. The final plan will be both a recovery and 
management plan. This plan will provide essential guidance for the 
recovery of the Gulf sturgeon.
    In addition to the protection afforded the species by the Act 
(e.g., section 9 prohibitions on take), because the Gulf sturgeon has 
been listed as a threatened species, additional extensive protection 
has been afforded the species. A summary of some of these measures as 
explained in detail in the recovery plan follow:
    a. All states within the range of the Gulf sturgeon have prohibited 
take.

    The Alabama Department of Conservation and Natural Resources 
established a regulation in 1972 prohibiting all take of sturgeon 
within the jurisdiction of the State of Alabama.
    The Florida Marine Fisheries Commission established a regulation 
in 1984 prohibiting all take of sturgeon within the jurisdiction of 
the State of Florida.
    The Mississippi Department of Wildlife, Fisheries, and Parks 
established a regulation in 1974 prohibiting all take of sturgeon 
within the jurisdiction of the State of Mississippi.
    The Louisiana Department of Wildlife and Fisheries established a 
regulation in 1990 prohibiting all take of sturgeon within the 
jurisdiction of the State of Louisiana.

    b. The Gulf States Marine Fisheries Commission initiated a Gulf 
Sturgeon Interjurisdictional Fishery Management Plan in 1990, which 
served as the foundation for the recovery team and recovery plan.
    c. The Services and the States of Alabama, Florida, Louisiana, 
Mississippi, and Texas have all conducted research on the distribution 
and abundance of Gulf sturgeon. Research programs to gather more life 
history and population information will be a continuing coordinated 
effort.
    d. The Mobile District of the U.S. Army Corps of Engineers (Corps) 
has worked closely with conservation agencies on several projects to 
improve habitat for Gulf sturgeon. These include efforts to restore 
important thermal refugia habitat and access into Battle Bend Cutoff in 
the Apalachicola River. The Corps has also funded studies to monitor 
the Pearl River Gulf sturgeon populations.
    e. The Corps and the National Oceanic and Atmospheric 
Administration have developed a Cooperative Agreement to Create and 
Restore Fish Habitat. Under this agreement, much can be accomplished 
for the recovery of Gulf sturgeon. One such project includes 
restoration of access to the Blue Spring Run on the Apalachicola River.
    f. The FWS has recently produced a draft Mobile River Basin Aquatic 
Ecosystem Recovery Plan to protect habitat and water quality in this 
portion of the Gulf sturgeon's range. A Mobile River Basin Aquatic 
Ecosystem Coalition composed of business leaders, private property 
owners, State and Federal agencies, and environmental organizations has 
been established to manage recovery efforts in the Basin.
    g. Several State and Federal agencies have recently formed the 
Suwannee River Cooperative River Basin Study. This project will focus 
on taking a holistic approach to water quality management in the entire 
Suwannee River watershed, home to a significant population of the Gulf 
sturgeon.
    h. In September, 1994, fourteen Federal agencies including the FWS, 
Corps, NMFS, National Park Service, and the Department of Defense 
signed a Memorandum of Understanding (MOU) on implementation of the 
Act. The purpose of the MOU was to establish a general framework for 
cooperation and participation among the agencies in accordance with 
responsibilities under the Act. The agencies are to work together along 
with appropriate involvement of the public, States, Indian Tribal 
governments, and local governments, to achieve the common goal of 
conserving species listed as threatened or endangered under the Act by 
protecting and managing their populations and the ecosystems upon 

[[Page 43723]]
which those populations depend. The cooperating Federal agencies 
involved in recovery of the Gulf sturgeon will now be able to work 
closely together under the umbrella of the MOU.
    i. Designated critical habitat is protected by the Act only under 
section 7(a)(2), which provides that activities that are federally 
funded, permitted, or carried out may not destroy or adversely modify 
critical habitat. However, section 7(a)(2), which also prohibits 
Federal activities likely to jeopardize listed species, provides 
substantial protection to the habitat of listed species even if 
critical habitat is not designated. For some species, the protection 
afforded the species' habitat through application of the no jeopardy 
standard is so strong, the Service believes there would be no direct 
net conservation benefit from designating critical habitat.
    Regulations (50 CFR part 402.02) define ``jeopardize the continued 
existence of'' as meaning an action that would reduce appreciably the 
likelihood of both the survival and recovery of a species by reducing 
the reproduction, numbers, or distribution of that species. 
``Destruction or adverse modification'' is defined as an alteration 
that appreciably diminishes the value of critical habitat for both the 
survival and recovery of a listed species. Because it is a wide-ranging 
anadromous fish, moving from the marine environment into freshwater 
rivers to spawn, the Gulf sturgeon is dependent on a variety of habitat 
features and environmental conditions. During its annual migration, it 
requires nearshore (bays and estuaries) and offshore (Gulf of Mexico) 
feeding areas and freshwater rivers with adequate water quality and 
quantity, hard bottoms for spawning, and spring flows and deep holes 
for thermal refugia. Destruction or adverse modification of any of 
these habitat features to the point of appreciably diminishing habitat 
value for recovery and survival would also jeopardize the species' 
continued existence by reducing its reproduction, numbers, or 
distribution.
    For example, a dam proposed for construction on a river system used 
for spawning by the Gulf sturgeon could affect the species by 
preventing access to upstream spawning areas. If critical habitat were 
designated for the Gulf sturgeon, and if the dam impeded access thus 
reducing the value of the critical habitat for both survival and 
recovery, the Service would make a ``destruction or adverse 
modification'' finding in its biological opinion. However, if critical 
habitat were not designated, the dam would prevent the Gulf sturgeon 
from reaching the spawning areas, thereby reducing its distribution, 
reproduction, and probably numbers. If this loss was sufficient to 
reduce appreciably the likelihood of both survival and recovery of the 
species, it would meet the definition of jeopardy (see above), and 
result in a jeopardy biological opinion. Another example would be the 
development of a private marina involving the dredging of a basin for 
boat use. If the dredging altered or destroyed certain habitat features 
required by the Gulf sturgeon, such as hard bottoms or deep holes, it 
would violate the ``destroy or adversely modify'' standard by reducing 
the value of that habitat for survival and recovery of the species. 
However, appreciable reduction of any such habitat would also 
jeopardize the species by reducing the species' reproduction, numbers, 
or distribution. Loss of hard bottoms would affect reproduction due to 
the loss of sites for egg deposition, and loss of deep holes used for 
thermal refugia would change the distribution of the species by 
preventing it from remaining in formerly suitable river reaches.
    For the Gulf sturgeon, the Service therefore believes that 
designation of critical habitat would not add any protection over that 
afforded by the jeopardy standard, because any appreciable diminishment 
of habitat sufficient to appreciably reduce the value of the habitat 
for survival and recovery would also appreciably reduce the likelihood 
of survival and recovery by reducing reproduction, numbers, or 
distribution. The Service has found this to be the case for other 
aquatic species for which an appreciable reduction in habitat value 
would trigger the jeopardy standard, for example the Appalachian elktoe 
mussel, listed as endangered on November 23, 1994 (59 FR 60324), and 
three Texas aquatic invertebrates, listed as endangered on June 5, 1995 
(60 FR 29537).
    Based on the above discussion, the Services have determined that 
the lack of additional conservation benefit from critical habitat 
designation for this species makes such designation not prudent.

References Cited

Barkuloo, J.M. 1988. Report on the conservation status of the Gulf 
of Mexico sturgeon, Acipenser oxyrhynchus desotoi. U.S. Fish and 
Wildlife Service, Panama City, Florida. 33 pp.
Gilbert, C.R. 1992. Atlantic sturgeon. Pp. 5-8 in Rare and 
endangered Biota of Florida, Vol. II: Fishes. University Presses of 
Florida, Gainesville.
Hollowell, J.L. 1980. Status report for the Gulf of Mexico sturgeon, 
Acipenser oxyrhynchus desotoi (Vladykov). Unpublished report to U.S. 
Fish and Wildlife Service, Jacksonville, Florida. 9 pp.
Reynolds, C.R. 1993. Gulf sturgeon sightings, historic and recent--a 
summary of public responses. U.S. Fish and Wildlife Service, Panama 
City, Florida. 40 pp.
Wooley, C.M., and E.J. Crateau. 1985. Movement, microhabitat, 
exploitation, and management of Gulf of Mexico sturgeon, 
Apalachicola River, Florida. North American Journal of Fish 
Management 5:590-605.

Author

    The primary author of this document is Dr. Michael M. Bentzien (see 
ADDRESSES section).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: August 18, 1995.
John G. Rogers,
Acting Director, Fish and Wildlife Service.

    Dated: August 17, 1995.
Gary C. Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 95-20935 Filed 8-22-95; 8:45 am]
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