[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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