[Federal Register Volume 67, Number 109 (Thursday, June 6, 2002)]
[Proposed Rules]
[Pages 39107-39199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13620]



[[Page 39105]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 17 and 226



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the Gulf Sturgeon; Proposed Rule

[[Page 39106]]


  Federal Register / Vol. 67, No. 109 / Thursday, June 6, 2002 / 
Proposed Rules  
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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI23

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 0202522126-2126-01; I.D. 052002A]
RIN 0648-AQ03


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Gulf Sturgeon

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

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (FWS) and the National 
Marine Fisheries Service (NMFS), collectively ``the Services,'' propose 
to designate critical habitat for the Gulf sturgeon (Acipenser 
oxyrinchus desotoi), a threatened species listed under the Endangered 
Species Act of 1973, as amended (Act). We propose 14 geographic areas 
among the Gulf of Mexico rivers and tributaries as critical habitat for 
the Gulf sturgeon. These 14 geographic areas (units) encompass 
approximately 2,544 river kilometers (rkm) (1,580 river miles (rmi)) 
and 6,042 square kilometers (km\2\) (2,333 square miles (mi\2\)) of 
estuarine and marine habitat.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species, and that may require special 
management considerations or protection. If this proposal is made 
final, section 7(a)(2) of the Act requires that Federal agencies ensure 
that actions they fund, permit, or carry out are not likely to result 
in the destruction or adverse modification of critical habitat. The 
regulatory effect of the critical habitat designation does not extend 
beyond those activities funded, permitted, or carried out by Federal 
agencies. State or private actions, with no Federal involvement, are 
not affected.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any particular area as critical habitat. 
We hereby solicit data and comments from the public on all aspects of 
this proposal, including data on the economic and other impacts of the 
designation.

DATES: Comments: We will accept comments until September 23, 2002.
    Public Hearings: We have scheduled four public hearings for this 
proposal. We will hold public informational meetings prior to each 
public hearing at the hearing location. The public information sessions 
will start at 5:00 p.m. and end at 6:30 p.m.. The formal public 
hearings will start at 7:00 p.m. and end at 9:00 p.m. on the dates 
indicated:

(1) August 19, 2002, Live Oak, FL
(2) August 20, 2002, Defuniak Springs, FL
(3) August 21, 2002, Biloxi, MS
(4) August 22, 2002, Kenner, LA

    All comments received during the comment period, both written and 
presented at public hearings, will receive equal consideration.

ADDRESSES: Comments: If you wish to comment, you may submit your 
comments by any one of several methods:
    (1) You may submit written comments and information to the Panama 
City Field Office, addressed to Patty Kelly, U.S. Fish and Wildlife 
Service, 1601 Balboa Avenue, Panama City, FL 32405.
    (2) You may hand-deliver written comments to the Panama City Field 
Office, at the above address, or fax your comments to 850/763-2177.
    (3) You may send comments by electronic mail (e-mail) to 
[email protected]. For directions on electronic filing of comments, 
see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

Public Hearings

    (1) Suwannee River Water Management District, 9225 C.R. 49, Live 
Oak, FL 32060.
    (2) City of Defuniak Springs, 71 U.S. Highway 90 West, Chautauqua 
Building, Museum Room, Defuniak Springs, FL 32433.
    (3) J.L. Scott Marine Ed Center, 115 Beach Boulevard, Biloxi, MS 
39530.
    (4) Hilton New Orleans Airport, 901 Airline Drive, Kenner, LA 
70062.

FOR FURTHER INFORMATION CONTACT: Patty Kelly, FWS, at the above address 
(telephone 850/769-0552, extension 228; facsimile 850/763-2177) with 
questions concerning units 1 to 7; or Stephania Bolden, NMFS, at 9721 
Executive Center Drive North, St. Petersburg, FL 33702-2449, (telephone 
727/570-5312; facsimile 727/570-5517) with questions concerning units 8 
to 14.

SUPPLEMENTARY INFORMATION:

Background

    The Gulf sturgeon (Acipenser oxyrinchus (=oxyrhynchus) desotoi), 
also known as the Gulf of Mexico sturgeon, is an anadromous fish 
(ascending rivers from the sea for breeding), inhabiting coastal rivers 
from Louisiana to Florida during the warmer months and overwintering in 
estuaries, bays, and the Gulf of Mexico. It is a nearly cylindrical 
primitive fish embedded with bony plates or scutes. The snout is 
greatly extended with four barbels in front of the mouth and the 
suction type mouth is located beneath the head. The upper lobe of the 
tail is longer than the lower lobe. Adults range from 1.8 to 2.4 meters 
(m) (6 to 8 feet (ft)) in length, with adult females larger than males. 
The Gulf sturgeon is distinguished from the geographically disjunct 
Atlantic coast subspecies (A. o. oxyrinchus) by its longer head, 
pectoral fins, and spleen (Vladykov 1955, Wooley 1985).

Distribution and Status

    Historically, the Gulf sturgeon occurred from the Mississippi River 
to Tampa Bay. Its present range extends from Lake Pontchartrain and the 
Pearl River system in Louisiana and Mississippi east to the Suwannee 
River in Florida. Sporadic occurrences have been recorded as far west 
as the Rio Grande River between Texas and Mexico, and as far east and 
south as Florida Bay (Wooley and Crateau 1985, Reynolds 1993).
    In the late 19th century and early 20th century, the Gulf sturgeon 
supported an important commercial fishery, providing eggs for caviar, 
flesh for smoked fish, and swim bladders for isinglass, a gelatin used 
in food products and glues (Carr 1983). Gulf sturgeon numbers declined 
due to overfishing throughout most of the 20th century. The decline was 
exacerbated by habitat loss associated with the construction of water 
control structures, such as dams and sills, mostly after 1950. In 
several rivers throughout its range, dams have severely restricted 
sturgeon access to historic migration routes and spawning areas 
(Boschung 1976, Wooley and Crateau 1985, McDowell 1988).
    On September 30, 1991, we listed the Gulf sturgeon as a threatened 
species under the Act (16 U.S.C. 1531 et seq.) (56 FR 49653). Other 
threats and potential threats identified in the listing

[[Page 39107]]

rule included modifications to habitat associated with dredged material 
disposal, de-snagging, and other navigation maintenance activities; 
incidental take by commercial fishermen; poor water quality associated 
with contamination by pesticides, heavy metals, and industrial 
contaminants; aquaculture and incidental or accidental introductions; 
and the Gulf sturgeon's slow growth and late maturation. The Gulf 
sturgeon listing rule and the Gulf Sturgeon Recovery/Management Plan 
(FWS et al. 1995), which was approved by the Services and the Gulf 
States Marine Fisheries Commission, provide a more detailed discussion 
of the reasons for the species' decline and threats to surviving 
populations.
    The Gulf Sturgeon Recovery/Management Plan (FWS et al. 1995) 
recommended that genetic studies be done to determine geographically 
distinct management units. Some work in this regard has been completed 
(Waldman and Wirgin 1998), but we have not formally adopted management 
units at this time. For purposes of this proposed rule, we have used 
the term subpopulation to subdivide the Gulf sturgeon population based 
on geography, degree of connectedness, and genetic interchange (Lande 
and Barrowclough 1987). Seven subpopulations are described below.

Feeding Habits

    Gulf sturgeon feeding habits in freshwater vary depending on the 
fish's life history stage (i.e., young-of-year, juvenile, subadult, 
adult). Young-of-year Gulf sturgeon remain in freshwater through early 
February feeding on aquatic invertebrates and detritus (Mason and 
Clugston 1993, Sulak and Clugston 1999). Juvenile feeding is believed 
to be widely distributed, exploiting scarce food resources throughout 
the river, including aquatic insects (e.g., mayflies and caddisflies), 
worms (oligochaetes), and bivalve molluscs (Huff 1975, Mason and 
Clugston 1993). Mason and Clugston (1993) found that subadult and adult 
Gulf sturgeon collected during June and October do not feed in fresh 
water.
    Many reports indicate that adult and subadult Gulf sturgeon fast 
and lose up to 30 percent of their total body weight while in fresh 
water, and then compensate the loss during winter feeding in the sea 
(Carr 1983, Wooley and Crateau 1985, Clugston et al. 1995, Morrow et 
al. 1998a, Heise et al. 1999a, Sulak and Clugston 1999, Ross et al. 
2000). Gu et al. (2001) tested the hypothesis that Gulf sturgeon do not 
feed significantly during their annual residence in fresh waters by 
comparing stable carbon isotope ratios of tissue samples from subadult 
and adult Suwannee River Gulf sturgeon and their potential fresh water 
and marine food sources. A large difference in isotope ratios between 
fresh water food sources and fish muscle tissue suggests that Gulf 
sturgeon do not feed significantly in fresh waters. The isotope 
similarity between Gulf sturgeon and marine food resources strongly 
indicates that this species relies almost entirely on the marine food 
web for its growth (Gu et al. 2001).
    Once Gulf sturgeon leave the river, having spent at least 6 months 
in the river fasting, we presume that they immediately begin feeding. 
Upon exiting the rivers, Gulf sturgeon are found in high concentrations 
near their natal river mouths. Lakes and bays at the mouths of the 
river systems where Gulf sturgeon occur are important because they 
offer the first opportunity for Gulf sturgeon exiting their natal 
rivers to forage. Gulf sturgeon rely almost entirely on estuarine and 
marine food for their growth (Gu et al. 2001). Gulf sturgeon must be 
able to consume sufficient quantities of prey while in estuarine and 
marine waters to regain the weight they lose while in the river system 
and to maintain positive growth on a yearly basis. In addition, 
reproductive Gulf sturgeon require additional food resources to obtain 
sufficient energy necessary for reproduction (Fox et al. in press, 
Murie and Parkyn pers. comm. 2002).
    Adult and subadult Gulf sturgeon, during marine and estuarine 
periods, are thought to forage opportunistically (Huff 1975), primarily 
on benthic (bottom dwelling) invertebrates. Gut content analyses have 
indicated that the Gulf sturgeon's diet is predominated by amphipods, 
lancelets, polychaetes, gastropods, shrimp, isopods, molluscs, and 
crustaceans (Huff 1975, Mason and Clugston 1993, Carr et al. 1996b, Fox 
et al. 2000, Fox et al. in press). Gulf sturgeon from the Suwannee 
River subpopulation are known to forage on brachiopods (D. Murie and D. 
Parkyn, University of Florida (UF), pers. comm. 2002); however this is 
not a documented prey of other subpopulations. Ghost shrimp 
(Lepidophthalmus louisianensis) and the haustoriid amphipod 
(Lepidactylus sp.) are strongly suspected to be the most important prey 
for adult Gulf sturgeon over 20 kilograms (kg) (44 pounds (lb)) (Heard 
et al. 2000, Fox et al. in press). This hypothesis is based on the 
following evidence--(1) Gulf sturgeon have been consistently located 
and observed actively feeding in areas where numerous burrows similar 
to those occupied by ghost shrimp exist (Fox et al. 2000) and with high 
densities of both ghost shrimp and haustoriid amphipods (Heard et al. 
2000), (2) the digestive tracts of two adult Gulf sturgeon that died 
during netting operations contained numerous ghost shrimp (Fox et al. 
2000), (3) stomach contents of a 30 kg (67 lb) sturgeon taken in the 
upper portion of Choctawhatchee Bay contained more than 100 individual 
haustoriid amphipods and 67 ghost shrimp (Heard et al. 2000), and (4) 
one-third of 157 sturgeon guts analyzed by Carr et al. (1996b) 
contained exclusively brachipods and ghost shrimp.

Reproduction

    Gulf sturgeon are long-lived, with some individuals reaching at 
least 42 years in age (Huff 1975). Age at sexual maturity for females 
ranges from 8 to 17 years, and for males from 7 to 21 years (Huff 
1975). Gulf sturgeon eggs are demersal (they are heavy and sink to the 
bottom), adhesive, and vary in color from gray to brown to black 
(Vladykov 1963, Huff 1975, Parauka et al. 1991). Chapman et al. (1993) 
estimated that mature female Gulf sturgeon produce an average of 
400,000 eggs. Habitat at egg collection sites consist of limestone 
bluffs and outcroppings, cobble, limestone bedrock covered with gravel 
and small cobble, gravel, and sand (Marchant and Shutters 1996, Sulak 
and Clugston 1999, Fox et al. 2000). A dense matrix of gravel or cobble 
is probably essential for Gulf sturgeon egg adhesion and the sheltering 
of the yolk sac larvae, and is a habitat the adults apparently select 
(Sulak and Clugston 1999). Other substrates identified as possible 
spawning habitat include marl (clay with substantial calcium 
carbonate), soapstone, or hard clay (W. Slack, Mississippi Museum of 
Natural Science, pers. comm. 2002; F. Parauka, FWS, pers. comm. 2002). 
Water depths at egg collection sites ranged from 1.4 to 7.9 m (4.6 to 
26 ft), with temperatures ranging from 18.3 to 22.0 degrees Celsius 
( deg.C) (64.9 to 71.6 degrees Fahrenheit ( deg.F)) (Fox et al. 2000). 
Laboratory experiments indicated optimal water temperature for survival 
of Gulf sturgeon larvae is between 15 and 20 deg.C (59 and 68 deg.F), 
with low tolerance to temperatures above 25 deg.C (77 deg.F) (Chapman 
and Carr 1995).
    Sulak and Clugston (1999) suggested that sturgeon spawning activity 
in the Suwannee River is related to the lunar phase of the moon, but 
only after the water temperature has risen to 17 deg.C (62.6 deg.F). 
Fox et al. (in press) however, found little evidence of spawning 
associated with lunar cycles within the Choctawhatchee River system.

[[Page 39108]]

Spawning in the Suwannee River occurs during the general period of 
spring high water, when ionic conductivity and calcium ion 
concentration are most favorable for egg development and adhesion 
(Sulak and Clugston 1999). Fox et al. (in press) found no clear pattern 
between timing of river entrance and flow patterns on the 
Choctawhatchee River.
    Atlantic sturgeon (A. oxyrhynchus) exhibit a long inter-spawning 
period, with females spawning at intervals ranging from every 3 to 5 
years, and males every 1 to 5 years (Smith 1985). It is believed that 
Gulf sturgeon exhibit similar behavior, as male Gulf sturgeon are 
capable of annual spawning, and females require more than one year 
between spawning events (Huff 1975, Fox et al. 2000).

Fresh Water Habitat

    In the spring (March to May), adult and subadult Gulf sturgeon 
return to their natal river, where sexually mature sturgeon spawn, and 
the population spends until October or November (6 to 8 months) in 
fresh water rivers (Odenkirk 1989, Foster 1993, Clugston et al. 1995, 
Fox et al. 2000). During their early life history stages, sturgeon 
require bedrock and clean gravel or cobble substrate for eggs to adhere 
to and for shelter for developing larvae (Sulak and Clugston 1998). 
Young-of-year appear to disperse widely, using extensive portions of 
the river as nursery habitat. They are typically found on sandbars and 
sand shoals over rippled bottom and in shallow, relatively open, 
unstructured areas. This dispersion may be an adaptation to maximize 
scarce food resources (Randall and Sulak 1999). Clugston et al. (1995) 
reported that young Gulf sturgeon in the Suwannee River, weighing 
between 0.3 and 2.4 kg (0.7 and 5.3 lb), remain in the vicinity of the 
river mouth and estuary during the winter and spring.
    Adult Gulf sturgeon spawn in upper river reaches. On some river 
systems such as the Pascagoula River and Apalachicola River, adult and 
subadult Gulf sturgeon remain near the spawning grounds throughout the 
summer months (Wooley and Crateau 1985, Ross et al. 2001b). However, in 
other rivers Gulf sturgeon spawn and move downstream to areas referred 
to as summer resting or holding areas. Adults and subadults are not 
distributed uniformly throughout the river, but show a preference for 
these discrete areas usually located in lower and middle river reaches 
(Potak et al. 1995). Often, these resting areas are located in close 
proximity to springs throughout the warmest months of the year, but not 
located within a spring or thermal plume emanating from a spring 
(Clugston et al. 1995, Potak et al. 1995, Foster and Clugston 1997). 
These resting areas are also often located in deep holes or shallow 
areas along straight-aways ranging from 2 to 19 m (6.6 to 62.3 ft) deep 
(Wooley and Crateau 1985, Morrow et al. 1998a, Ross et al. 2001a and b, 
Craft et al. 2001, Hightower et al. in press). The substrates consisted 
of mixtures of limerock and sand (Clugston et al. 1995), sand and 
gravel (Wooley and Crateau 1985, Morrow et al. 1998a), or just sandy 
substrate (Hightower et al. in press).
    River flow may serve as an environmental cue that governs both 
sturgeon migration and spawning (Chapman and Carr 1995). If the flow 
rate is too high, sturgeon in several life-history stages can be 
adversely affected. Data describing the sturgeon's swimming ability in 
the Suwannee River strongly indicated that they cannot continually swim 
against prevailing currents of greater than 1 to 2 m per second (3.2 to 
6.6 ft per second) (Wakeford 2001). If the flow is too strong, eggs 
might not be able to settle on and adhere to suitable substrate 
(Wakeford 2001). Flow velocity needs for age zero sturgeon may vary 
depending on substrate type. Chan et al. (1997) found that age zero 
Gulf sturgeon under laboratory conditions exposed to water velocities 
over 12 centimeters per second (cm/s) (4.7 inches per second (in/s)) 
preferred a cobble substrate, but favored water velocities under 12 cm/
s (4.7 in/s) and then utilized a variety of substrates (sand, gravel, 
and cobble). Natural surface and groundwater discharges influence a 
river's characteristic fluctuations in volume, depth, and velocity 
(Leitman et al. 1993, Albertson and Torak 2002).
    Gulf sturgeon require large areas of diverse habitat that have 
natural variations in water flow, velocity, temperature, and turbidity 
(FWS et al. 1995, Wakeford 2001). Change in temperature is one of the 
most important factors in initiating sturgeon migration (Wooley and 
Crateau 1985, Chapman and Carr 1995, Foster and Clugston 1997) (see the 
``Migration'' section for temperature ranges). Laboratory experiments 
show that Gulf sturgeon eggs, embryos, and larvae have the highest 
survival rates when temperatures are between 15 and 20 deg.C (59 and 
68 deg.F). Mortality rates of Gulf sturgeon gametes and embryos are 
highest when temperatures are 25 deg.C (77 deg.F) and above (Chapman 
and Carr 1995) (see ``Reproduction'' section for more detail). 
Researchers have documented temperature ranges at Gulf sturgeon resting 
areas between 15.3 and 33.7 deg.C (59.5 and 92.7 deg.F) with dissolved 
oxygen levels between 5.6 and 9.1 milligrams per liter (mg/l) (Morrow 
et al. 1998a, Hightower et al. in press).
    In comparison to other fish species, sturgeon have a limited 
behavioral and physiological capacity to respond to hypoxia 
(insufficient oxygen levels) (Secor and Niklitschek 2001). Basal 
metabolism, growth, consumption, and survival are sensitive to changes 
in oxygen levels (Secor and Niklitschek 2001). Temperatures greater 
than 20 deg.C (68 deg.F) amplify the effect of hypoxia on sturgeon and 
other fishes (Coutant 1987). In laboratory experiments, young shortnose 
sturgeon (A. brevirostrum) (less than 77 days old) died at oxygen 
levels of 3.0 mg/l and all sturgeon died at oxygen levels of 2.0 mg/l 
(Jenkins et al. 1993). Data concerning the temperature, oxygen, and 
current velocity requirements of cultured sturgeon are being collected. 
Researchers plan to use this information to develop detailed 
information on water flow requirements of wild sturgeon throughout 
different phases of their fresh water residence (Wakeford 2001).

Estuarine and Marine Habitat

    Subadult and adult Gulf sturgeon spend cool months (October or 
November through March or April) in estuarine areas, bays, or in the 
Gulf of Mexico (Odenkirk 1989, Foster 1993, Clugston et al. 1995). 
Studies of subadult Gulf sturgeon (ages 4 to 7) in Choctawhatchee Bay 
found that 78 percent of tagged fish remained in the bay the entire 
winter, while 13 percent ventured into a connecting bay. Possibly 9 
percent spent some time in the Gulf of Mexico (FWS 1998). Adult Gulf 
sturgeon are more likely to overwinter in the Gulf of Mexico, with 40 
percent of the tagged adults presumed to have left Choctawhatchee Bay 
and spent extended periods of time in the Gulf of Mexico (Fox and 
Hightower 1998a). In contrast, Gulf sturgeon from the Suwannee River 
subpopulation are known to migrate into the nearshore waters, where 
they remain for up to two months and then depart to unknown feeding 
locations in the open Gulf of Mexico (Carr et al. 1996b, Edwards et al. 
in prep.).
    Subadult Gulf sturgeon show a preference for sandy shoreline 
habitats with water depths less than 3.5 m (11.5 ft) and salinities 
less than 6.3 parts per thousand (Parauka et al. in press). Fox and 
Hightower (1998a) found that adult Gulf sturgeon monitored in 
Choctawhatchee Bay use some of the same habitats as subadults. Some 
subadult Gulf sturgeon use seagrass

[[Page 39109]]

habitats in Choctawhatchee Bay. However, the majority of tagged fish 
have been located in areas lacking seagrass (Parauka et al. in press). 
Adult Gulf sturgeon also have not been frequently found in areas 
containing seagrass, which were concentrated in the western portion of 
the bay.
    Craft et al. (2001) found that Gulf sturgeon in Pensacola Bay 
appear to prefer shallow shoals 1.5 to 2.1 m (5 to 7 ft) and deep holes 
near passes. Unvegetated, fine to medium-grain sand habitats, such as 
sandbars, and intertidal and subtidal energy zones resulting in 
sediment sorting and a preponderance of sand support a variety of 
potential prey items including estuarine crustaceans, small bivalve 
mollusks, and lancelets (Brim pers. comm. 2002, Menzel 1971, Abele 
1986, American Fisheries Society 1989).
    Habitats used by Gulf sturgeon in the vicinity of the Mississippi 
Sound barrier islands tend to have a sand substrate and an average 
depth of 1.9 to 5.9 m (6.2 to 19.4 ft). Preliminary data from bottom 
samples taken in these barrier island areas show that all samples 
contain lancelets (Branchiostoma). Since lancelets are a documented 
prey of Gulf sturgeon, it is likely that Gulf sturgeon are feeding 
along the sand substrate at barrier island passes (Ross et al. 2001a). 
Gulf nearshore (less than 1.6 km (1 mi)) unconsolidated, fine-medium 
grain sands, including natural inlets and passes from the Gulf to 
estuaries, support crustaceans such as mole crabs, sand fleas, various 
amphipod species, and lancelets (Brim pers. comm. 2002, Menzel 1971, 
Abele 1986, American Fisheries Society 1989).
    Estuary and bay unvegetated ``mud'' habitats having a preponderance 
of natural silts and clays support burrowing and deep burrowing 
crustaceans, such as ghost shrimp, small crabs, also various polychaete 
worms, and small bivalve mollusks (Brim pers. comm. 2002, Menzel 1971, 
Abele 1986, American Fisheries Society 1989). Gulf sturgeon are found 
in these areas and since these are known food sources, it is assumed 
that Gulf sturgeon are also feeding in these areas.

Migration

    Migratory behavior of the Gulf sturgeon varies by sex, maturity, 
water temperature, and river flow. Male Gulf sturgeon generally enter 
the rivers earlier in the spring and move greater distances than 
females; ripe (in reproductive condition) males and females enter the 
river earlier than nonripe fish (Fox et al. 2000). Adults and subadults 
begin moving from the estuaries, bays, and Gulf of Mexico into the 
coastal rivers in early spring (i.e., March through May) when river 
water temperatures range from 16.0 to 23. deg.C (60.8 to 73.4 deg.C) 
(Huff 1975, Carr 1983, Wooley and Crateau 1985, Odenkirk 1989, Clugston 
et al. 1995, Foster and Clugston 1997, Fox and Hightower 1998, Sulak 
and Clugston 1999, Fox et al. 2000). Some research supports the theory 
that spring migration coincides with the general period of spring high 
water (Sulak and Clugston 1999), while observations on other rivers 
systems do not support this theory (Fox et al. in press).
    Fall downstream migration from fresh to saltwater begins in 
September (at about 23 deg.C (73.4 deg.F)) and continues through 
November (Huff 1975, Wooley and Crateau 1985, Foster and Clugston 
1997). During the fall migration from fresh to saltwater, Gulf sturgeon 
may require a period of physiological acclimation to changing salinity 
levels, referred to as osmoregulation or staging (Wooley and Crateau 
1985). This period may be short (Fox et al. in press) as sturgeon 
develop an active mechanism for osmoregulation and ionic balance by age 
one (Altinok 1997). On some river systems, timing of the fall migration 
appears to be associated with pulses of higher river discharge (Heise 
et al. 1999a and b, Ross et al. 2000 and 2001b, Parauka et al. in 
press).
    Sturgeon ages 1 through 6 remain in the mouth of the Suwannee River 
over winter. In late January through early February, young-of-the-year 
Gulf sturgeon migrate down river for the first time (Sulak and Clugston 
1999). Huff (1975) noted that juvenile Gulf sturgeon in the Suwannee 
River most likely participated in pre- and post-spawning migrations, 
along with the adults.
    Findeis (1997) describes sturgeon (Acipenseridae) as exhibiting 
evolutionary traits adapted for benthic cruising. Tracking observations 
by Sulak and Clugston (1999), Edwards et al. (in prep.), and Fox et al. 
(in press) support that individual fish move over an area until they 
encounter suitable prey type and density, at which time they forage for 
extended periods of time. Individual fish often remained in localized 
areas (less than 1 km\2\ (0.4 mi\2\) for extended periods of time 
(greater than two weeks) and then moved rapidly to another area where 
localized movements occurred again (Fox et al. in press). It is unknown 
precisely how much benthic area is needed to sustain Gulf sturgeon 
health and growth, but because Gulf sturgeon have been known to travel 
long distances (greater than 161 km (100 mi)) during their winter 
feeding phase, significant resources must be necessary. These winter 
migrations are an important strategy for feeding and for occasional 
travel to non-natal rivers for possible spawning and genetic 
interchange. Bays and portions of Gulf of Mexico waters adjacent to the 
lakes and bays near the mouths of the rivers where Gulf sturgeon occur 
are believed to be important for feeding and/or migrating (for 
increased gene flow and, therefore, increased genetic stability among 
subpopulations).
    When temperature drops occur that are associated with major cold 
fronts, researchers of the Escambia, Yellow, and Suwannee River 
subpopulations have been unable to locate adult Gulf sturgeon within 
the bays (Craft et al. 2001, Fox et al. in press, Edwards et al. in 
prep.). It is hypothesized that the cold fronts disperse sturgeon to 
more distant foraging grounds. It is currently unknown whether Gulf 
sturgeon undertake extensive offshore migrations, and further study is 
needed to determine whether important winter feeding habitat occurs in 
farther offshore areas.
    Sulak and Clugston (1999) describe two hypotheses regarding where 
adult Gulf sturgeon may overwinter in the Gulf of Mexico to find 
abundant prey. The first hypothesis is that Gulf sturgeon spread along 
the coast in nearshore waters in depths less than 10 m (33 ft). The 
alternative hypothesis is that they migrate far offshore to the broad 
sedimentary plateau in deep water (40 to 100 m (131 to 328 ft)) west of 
the Florida Middle Grounds, where over twenty species of bottom-feeding 
fish congregate in the winter (Darnell and Kleypas 1987). Available 
data support the first hypothesis. Evaluation of tagging data has 
identified several nearshore Gulf of Mexico feeding migrations, but no 
offshore Gulf of Mexico feeding migrations. Telemetry data document 
Gulf sturgeon from the Pearl River and Pascagoula River subpopulations 
migrate from their natal bay systems to Mississippi Sound and move 
along the barrier islands on both the barrier island passes (Ross et 
al. 2001a, Rogillio et al. in prep.). Gulf sturgeon from the 
Choctawhatchee River, Yellow River, and Apalachicola River have been 
documented migrating in the nearshore Gulf of Mexico waters between 
Pensacola and Apalachicola Bays units (Fox et al. in press, F. Paruka 
pers. comm. 2002). Telemetry data from the Gulf of Mexico mainly show 
sturgeon in depths of 6 m (19.8 ft) or less (Ross et al. 2001a, 
Rogillio et al. in prep., Fox et al. in press, F. Paruka pers. comm. 
2002).

[[Page 39110]]

River-Specific Fidelity

    Stabile et al. (1996) analyzed Gulf sturgeon subpopulations from 
eight drainages along the Gulf of Mexico for genetic diversity. They 
noted significant differences among Gulf sturgeon stocks and suggested 
that they displayed region-specific affinities and may exhibit river-
specific fidelity. Stabile et al. (1996) identified five regional or 
river-specific stocks (from west to east)--(1) Lake Pontchartrain and 
Pearl River, (2) Pascagoula River, (3) Escambia and Yellow Rivers, (4) 
Choctawhatchee River, and (5) Apalachicola, Ochlockonee, and Suwannee 
Rivers.
    Tagging studies suggest that Gulf sturgeon exhibit a high degree of 
river fidelity. From 1981 to 1993, 4,100 fish were tagged in the 
Apalachicola and Suwannee Rivers. Of these, 860 fish (21 percent) were 
recaptured in the river of their initial collection. Only eight 
subadults (.002 percent) moved between rivers (FWS et al. 1995). Foster 
and Clugston (1997) noted that telemetered Gulf sturgeon in the 
Suwannee River returned to the same areas as the previous summer, 
suggesting that chemical cuing may influence distribution.
    To date, biologists have documented a total of 21 Gulf sturgeon 
making inter-river movements from natal rivers. They are as follows--
Apalachicola River to Suwannee River, six Gulf sturgeon (Carr et al. 
1996b); Suwannee River to Apalachicola River, three sturgeon (Carr et 
al. 1996b, F. Parauka pers. comm. 2002); Choctawhatchee River to 
Apalachicola River, one sturgeon (F. Parauka pers. comm. 2002); Yellow 
River to Choctawhatchee River, three sturgeon (one adult female, one 
subadult female) (Craft et al. 2001); Yellow River to Louisiana 
Estuarine area, one female sturgeon (Craft et al. 2001); Escambia River 
to Yellow River, one mature female on spawning grounds (Craft et al. 
2001); Suwannee River to Ochlockonee River, one sturgeon (FWS et al. 
1995); Choctawhatchee River to Escambia River, one male sturgeon (Fox 
et al. in press); Choctawhatchee River to Escambia, one female sturgeon 
(Fox et al. in press); Pearl River (Bogue Chitto) to Pascagoula River, 
one sturgeon (Ross et al. 2001b); Choctawhatchee River to Pascagoula 
River, one subadult sturgeon (Ross et al. 2001b); and Pascagoula River 
to Yellow River, one sturgeon (Ross et al. 2001b). Tallman and Healey 
(1994) note that observed straying rates between rivers were not the 
same as actual gene flow rates, i.e. inter-stock movement does not 
equate to successful reproduction. The gene flow is low in Gulf 
sturgeon stocks, with each stock exchanging less than one mature female 
per generation (Waldman and Wirgin 1997).

Previous Federal Action

    Federal action on the Gulf sturgeon began in 1982, when the fish 
was included as a Category 2 candidate species for listing in the FWS's 
vertebrate notices of review dated December 30, 1982 (47 FR 58454) and 
September 18, 1985 (50 FR 37958), and in the animal notice of review 
dated January 6, 1989 (54 FR 554). At that time, the FWS gave Category 
2 designation to species for which listing as threatened or endangered 
was possibly appropriate, but for which additional biological 
information was needed to support a proposed rule. A status report on 
the Gulf sturgeon (Hollowell 1980) had concluded that the fish had been 
reduced to a small population due to overfishing and habitat loss. In 
1988, the FWS completed a report on the conservation status of the Gulf 
sturgeon, which recommended listing it as a threatened species 
(Barkuloo 1988).
    The Services jointly proposed the Gulf sturgeon for listing as a 
threatened species on May 2, 1990 (55 FR 18357). In that proposed rule, 
we stated that designation of critical habitat was not prudent due to 
the species' broad range and the lack of knowledge about specific areas 
used by the species. We published the final rule on September 30, 1991 
(56 FR 49653) to add Gulf sturgeon to the list of threatened species, 
and included a special rule under section 4(d) of the Act to allow the 
take of Gulf sturgeon, in accordance with applicable State fish and 
wildlife conservation laws and regulations, for educational and 
scientific purposes, the enhancement of propagation or survival of the 
species, zoological exhibition, and other conservation purposes. In the 
final rule, we found that a critical habitat designation may be prudent 
but was not determinable. Section 4(b)(6)(C) of the Act provides that a 
concurrent critical habitat determination is not required with a final 
regulation implementing endangered or threatened status and that the 
final designation may be postponed for one additional year beyond the 
period specified in section 4(b)(6)(A), if a prompt determination of 
endangered or threatened status is essential to the conservation of the 
species, or critical habitat is not then determinable. We found that 
prompt determination of threatened status was essential to the 
conservation of the species and stated that we would make a final 
decision on designation of critical habitat by May 2, 1992. This 
decision, however, was not made.
    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 on October 11, 1994 
(Orleans Audubon Society v. Babbitt, Civ. No. 94-3510 (E.D. La)). 
Following a court order on August 9, 1995, granting the Fund's motion 
for summary judgement, the Services published a notice of decision on 
critical habitat designation for the Gulf sturgeon on August 23, 1995 
(60 FR 43721). We determined that critical habitat designation was not 
prudent based on the lack of additional conservation benefit to the 
species.
    On September 22, 1995, the Services and the Gulf States Marine 
Fisheries Commission approved the Gulf Sturgeon Recovery/Management 
Plan (FWS et al. 1995). The recovery plan established the criteria that 
must be met prior to the delisting of the Gulf sturgeon. The recovery 
plan also identified the actions that are needed to assist in the 
recovery of the Gulf sturgeon.
    On August 12, 1996, the plaintiffs filed a motion to add the 
Department of Commerce as a defendant in the lawsuit. The Fund amended 
their complaint to challenge the August 1995 ``not prudent'' 
determination. On October 30, 1997, the court granted the plaintiffs' 
motion for summary judgment, with relief restricted to a remand of the 
``not prudent'' determination to the Services, requiring that the 
Services publish a determination on designation of critical habitat, 
based on the best scientific information available. On February 27, 
1998, we published a notice of decision (63 FR 9967) on critical 
habitat designation for the Gulf sturgeon. We again determined that 
lack of additional conservation benefit from critical habitat 
designation for this species made such designation not prudent.
    On December 18, 1998, the Sierra Club sued the Services challenging 
the new determination not to designate critical habitat for the Gulf 
sturgeon (Sierra Club v. U.S. Fish and Wildlife Service et al. CA No. 
98-3788 (E.D. La.)). On January 25, 2000, the Court issued an order 
granting our motion for summary judgment and dismissing the complaint. 
The Sierra Club filed an appeal and, in March 2001, the United States 
Court of Appeals for the Fifth Circuit reversed the decision of the

[[Page 39111]]

District Court and instructed the District Court to remand the decision 
to us for reconsideration (Sierra Club v. U.S. Fish and Wildlife 
Service, 245 F.3d 434 (5th Cir. 2001)). On August 3, 2001, the District 
Court issued an order directing us to publish a proposed decision 
concerning critical habitat designation for the Gulf sturgeon by 
February 2, 2002, and a final decision by August 2, 2002. Negotiation 
with the plaintiff resulted in an agreement to publish the proposed 
decision by May 23, 2002, and the final decision by February 28, 2003.
    This proposal is the product of our reexamination of our 1998 
prudency determination for the Gulf sturgeon. It reflects our 
interpretation of the recent judicial opinions on critical habitat 
designation and the standards placed on us for making a prudency 
determination. If additional information becomes available on the 
species' biology and distribution and threats to the species, we may 
reevaluate this proposal to designate critical habitat, including 
proposing additional critical habitat, proposing the deletion or 
boundary refinement of existing proposed critical habitat, or 
withdrawing our proposal to designate critical habitat.

Critical Habitat

    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, at 
the time it is listed in accordance with the Act, 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 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' is defined in section 3(3) of the Act as the 
use of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which listing under 
the Act is no longer necessary.
    In order for habitat to be included in a critical habitat 
designation, the habitat features must be ``essential to the 
conservation of the species.'' Such critical habitat designations 
identify, to the extent known using the best scientific data available, 
habitat areas that provide essential life cycle needs of the species 
(i.e., areas on which are found the primary constituent elements, as 
defined at 50 CFR 424.12(b)).
    Regulations at 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species. If any areas containing the 
primary constituent elements are currently being managed to address the 
conservation needs of the Gulf sturgeon, they may not require special 
management or protection, and, therefore, may not meet the definition 
of critical habitat in section 3(5)(A)(i) of the Act.
    When we designate critical habitat, we may not have the information 
necessary to identify all areas which are essential for the 
conservation of the species. Nevertheless, we are required to designate 
those areas we know to be critical habitat, using the best information 
available to us.
    Within the geographic area of the species, we will designate only 
currently known essential areas. We will not speculate about what areas 
might be found to be essential if better information became available, 
or what areas may become essential over time. If the information 
available at the time of designation does not show that an area 
provides essential life cycle needs of the species, then the area will 
not be included in the critical habitat designation. Our regulations 
state that, ``The Secretary shall designate as critical habitat areas 
outside the geographic area presently occupied by the species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species'' (50 CFR 424.12(e)). 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require designation of 
critical habitat outside of occupied areas, we will not designate 
critical habitat in areas outside the geographic area occupied by the 
species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published on July 1, 1994 (59 FR 34271), provides guidance to 
ensure that our decisions are based on the best scientific and 
commercial data available. It requires that our biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, information 
that should be considered includes the listing package for the species, 
the recovery plan, articles in peer-reviewed journals, conservation 
plans developed by States and Counties, scientific status surveys, 
studies, and biological assessments, unpublished materials, and expert 
opinion or personal knowledge.
    Habitat is often dynamic, however, and populations may move from 
one area to another over time. Furthermore, we recognize that 
designation of critical habitat may not include all of the habitat 
areas that may eventually be determined to be necessary for the 
recovery of the species. Therefore, critical habitat designations do 
not signal that habitat outside the designation is unimportant or may 
not be required for recovery. Areas outside the critical habitat 
designation will continue to be subject to conservation actions that 
may be implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 of the Act take prohibition, as determined 
on the basis of the best available information at the time of the 
action. It is possible that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas could jeopardize those species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning and recovery efforts if new information available 
to these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Regulations at 50 CFR 424.12(a)(1) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist: (1) The species is threatened by taking 
or other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species or (2) such 
designation of critical habitat would not be beneficial to the species.
    In our February 27, 1998, notice of decision, we determined that 
the

[[Page 39112]]

designation of critical habitat was not prudent for the Gulf sturgeon 
because such designation would not be beneficial to the species. 
However, on March 15, 2001, the United States Court of Appeals for the 
Fifth Circuit determined that this ``not prudent'' determination was 
made erroneously, and ordered us to reconsider it (Sierra Club v. U.S. 
Fish and Wildlife Service, 245 F.3d 434). Accordingly, we withdraw our 
previous determination that designation of critical habitat will not 
benefit the Gulf sturgeon.
    In reconsidering whether designation of critical habitat for the 
Gulf sturgeon will be prudent, we find that designation will be clearly 
beneficial to the species. Critical habitat will primarily benefit the 
sturgeon through the Act's consulting mechanism under section 7 of the 
Act. If critical habitat is designated for the Gulf sturgeon, other 
Federal agencies will be required to consult with us on actions they 
carry out, fund, or authorize, to ensure that their actions will not 
destroy or adversely modify critical habitat. In this way, a critical 
habitat designation will protect areas that are necessary for the 
conservation of the species. It may also serve to enhance awareness 
within Federal agencies and the general public of the importance of 
Gulf sturgeon habitat and the need for special management 
considerations.
    A designation of critical habitat will provide Federal agencies 
with a clearer indication as to when consultation under Section 7 of 
the Act is required, particularly in cases where the action would not 
result in direct mortality, injury or harm to individuals of the 
species (e.g., an action occurring within the critical habitat area 
when or where the Gulf sturgeon is not present). The critical habitat 
designation, in describing the essential features of the habitat, will 
also help determine which activities conducted outside the designated 
area are subject to section 7 consultation (e.g., activities that may 
affect essential features of the designated area). For example, 
disposal of waste material in water adjacent to a critical habitat area 
may affect an essential feature (water quality) of the designated 
habitat and so would be subject to the provisions of section 7.
    A critical habitat designation will also assist Federal agencies in 
planning future actions because it establishes, in advance, those 
habitats that will be given an additional review in section 7 
consultations. This is particularly true in cases where there are 
alternative areas that would provide for the conservation of the 
species and the success of the action. With a designation of critical 
habitat, potential conflicts between Federal actions and listed species 
can be identified and possibly avoided early in the agency's process.
    It is true that we are already working with Federal and State 
agencies, and private individuals and organizations, in carrying out 
conservation activities for the Gulf sturgeon, such as conducting 
population surveys and assessing habitat conditions. It is also true 
that these entities are fully aware of the distribution, status, and 
habitat requirements for the Gulf sturgeon, as they are currently 
known. However, as discussed above, some additional educational and 
informational benefit will result from designation.
    Though the identification of known spawning habitat in this 
proposed rule may increase illegal harvest, we currently have no 
knowledge that illegal harvest is or has been an issue with the Gulf 
sturgeon. Since the States of Louisiana, Mississippi, Alabama, and 
Florida have deemed harvest illegal since the 1980s, and we found no 
records of illegal harvest during our literature review or in 
discussions with researchers, we have found no evidence that 
identification of Gulf sturgeon critical habitat would increase the 
degree of threat to the species. Therefore, we propose that designation 
of critical habitat is prudent for the Gulf sturgeon.

Methods and Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act and its implementing 
regulations (50 CFR 424.12), this proposal is based on the best 
scientific information available concerning the species' present and 
historical range, habitat, biology, and threats. In preparing this 
rule, we reviewed and summarized the current information available on 
the Gulf sturgeon, including the physical and biological features that 
are essential for the conservation of the species (see ``Primary 
Constituent Elements'' section), and identified the areas containing 
these features. The information used includes known locations; our own 
site-specific species and habitat information; State-wide Geographic 
Information System (GIS) coverages (e.g., land ownership, bathymetry 
(the measurement of depths of water in oceans, seas, and lakes), and 
estuarine substrates); the final listing rule for the Gulf sturgeon; 
recent biological surveys and reports; peer-reviewed literature; our 
recovery plan; discussions and recommendations from Gulf sturgeon 
experts; and information received during Gulf sturgeon recovery 
meetings. The Gulf Sturgeon Recovery/Management Plan (FWS et al. 1995) 
contains valuable biological information, and it is cited throughout 
this document. However, the state of our knowledge regarding Gulf 
sturgeon biology and distribution has changed markedly since 
publication of the recovery plan for this species. The recovery 
criteria put forth in this recovery plan were deemed preliminary and 
may now warrant revision in light of new information. As a result of 
recent research and survey efforts directed towards this species, 
substantial portions of the biological information presented in the 
recovery plan are now dated or obsolete. Thus, although the recovery 
plan is a valuable source of information, it is not the final authority 
on the natural history and distribution of this species.
    In the past, we had assumed, based on the information available at 
the time, that unoccupied habitat would be necessary for the recovery 
of the Gulf sturgeon. Since approval of the recovery plan in 1995 and 
our 1998 not prudent finding, we have collected new biological 
information on this species. We have analyzed what is necessary for the 
conservation of the Gulf sturgeon, as described above, and based on the 
best scientific information available at this time, we have determined 
that unoccupied habitat is not essential to the conservation of the 
Gulf sturgeon.

Determining the Scale of the Proposed Designation

    We first evaluated the Gulf sturgeon in the context of its current 
distribution throughout the historic range to determine what portion of 
the range must be conserved to ensure recovery of the species. We 
considered several factors in this evaluation--(1) Maintaining overall 
genetic integrity and minimizing the potential for inbreeding, (2) 
retaining potential evolutionary importance at the margins of the 
species' range by protecting the eastern- and western-most 
subpopulations, (3) decreasing the extinction risk of a subpopulation 
by protecting adjacent subpopulations that can provide a rescue effect, 
if needed, (4) avoiding the potential for subpopulation extirpation 
from environmental catastrophes, and (5) protecting sufficient habitat 
to support full recovery of the species.
    The historic range of the Gulf sturgeon included nine major rivers 
and several smaller rivers from the Mississippi River, Louisiana, to 
the Suwannee River, Florida, and in marine waters of the Central and 
Eastern Gulf of Mexico, south to Tampa Bay (Wooley and Crateau 1985, 
FWS et al. 1995).

[[Page 39113]]

Seven of these major river systems continue to support reproducing 
subpopulations. These include (from west to east)--the Pearl, 
Pascagoula, Escambia, Yellow/Blackwater, Choctawhatchee, Apalachicola, 
and Suwannee Rivers.
    Gulf sturgeon is listed as a single Distinct Population Segment 
(DPS) throughout its range (see policy 61 FR 4722). However, this 
species exists as several subpopulations with limited mixing. The Gulf 
Sturgeon Recovery/Management Plan (FWS et al. 1995) noted the 
importance of identifying and maintaining genetic integrity and 
diversity during restoration efforts on Gulf sturgeon. A severe loss of 
genetic variability often leads to a noticeable decline in the fitness 
of a species (Soul[eacute] 1987). Evidence suggests that peripheral 
subpopulations are often genetically and morphologically divergent from 
central subpopulations (Lesica and Allendorf 1995). Distinct traits 
found in peripheral subpopulations may be crucial to the species, 
allowing adaptation in the face of environmental change (Lesica and 
Allendorf 1995, Allendorf et al. 1997). In light of these 
considerations, we determined that the inclusion of stocks or 
subpopulations from both the eastern and the western margins of the 
current range were necessary to protect the potential evolutionary 
importance of those subpopulations (Scudder 1989, Lesica and Allendorf 
1995, Young and Harig 2001).
    While telemetry data indicate that Gulf sturgeon from one 
genetically distinct drainage occasionally enter another river and also 
mix during the winter months in estuarine and marine habitats, a 
genetic analysis of tissue samples concluded that Gulf sturgeon exhibit 
a strong natal river fidelity, with stocks exchanging less than one 
mature female per generation on the average (Waldman and Wirgin 1997). 
These low gene flow estimates strongly suggest that natural 
recolonization of extirpated subpopulations of Gulf sturgeon would 
proceed slowly (Waldman and Wirgin 1997). Semi-isolated subpopulations 
are more vulnerable to the effects of demographic and environmental 
population fluctuations (Forney and Gilpin 1989, Wahlberg et al. 1996).
    Gene flow estimates usually were higher between adjacent stocks, 
suggesting that migrants from semi-isolated subpopulations are 
exchanged chiefly with neighboring subpopulations (Waldman and Wirgin 
1997). The loss of any intermediate subpopulations by a single 
environmental catastrophe could seriously limit a species' recovery 
(Kautz and Cox 2000, Young and Harig 2001). In light of this, we 
determined that it is necessary to propose as critical habitat rivers 
used by subpopulations evenly spaced between the western- and eastern-
most limits of the current range. To ensure conservation of the 
species, subpopulations must be geographically located so that existing 
subpopulations could serve as sources of sturgeon emigration, albeit at 
a slow rate (Waldman and Wirgin 1997), to adjacent rivers as their 
subpopulations increase and so that they can provide a rescue effect if 
an adjacent subpopulation is extirpated (Brown and Kodric-Brown 1977, 
Hanski and Gyllenberg 1993, Young and Harig 2001).
    Designating critical habitat for only a few subpopulation units, or 
for units not spaced in a manner that allows fish to exchange with 
other subpopulations, could increase the vulnerability of the species 
due to isolation of subpopulations. Protection of a single, isolated, 
minimally viable population risks the extirpation or extinction of a 
species as a result of harsh environmental conditions, catastrophic 
events, or genetic deterioration over several generations (Kautz and 
Cox 2000). To reduce the risk of extinction through these processes, it 
is important to establish multiple protected subpopulations across the 
landscape (Soul[eacute] and Simberloff 1986, Wiens 1996).
    Because of these considerations, we reached the conclusion that 
this proposal should include critical habitat units within the major 
river systems that support the seven currently reproducing 
subpopulations (FWS et al. 1995) and associated marine habitats. These 
river systems include (from west to east)--the Pearl, Pascagoula, 
Escambia, Yellow/Blackwater, Choctawhatchee, Apalachicola, and Suwannee 
Rivers. We believe that with proper protection and management, these 
units collectively represent habitat necessary to provide for the 
conservation of the species. The number, distribution, and range of 
Gulf sturgeon subpopulations included in these units is necessary to 
protect and sustain this species' genetic integrity and diversity and 
to provide a rescue effect, if needed. We believe that these seven 
river systems, with their associated estuarine and marine environments, 
represent habitat that is essential for the conservation of the Gulf 
sturgeon.

Assessing Specific Habitat Areas Essential to the Conservation of Gulf 
Sturgeon

    Once we determined that the proper scale of the proposed critical 
habitat designation should cover the area occupied by the seven 
reproducing subpopulations, we evaluated which habitats used by those 
seven subpopulations are essential to their conservation. To conduct 
this evaluation, we assessed the critical life history components of 
Gulf sturgeon as they relate to habitat. Gulf sturgeon use the rivers 
for spawning, juvenile feeding, adult resting, and staging, and to move 
between the areas that support these components. Gulf sturgeon use the 
lower riverine, estuarine, and marine environment during winter months 
primarily for feeding, and more rarely, for inter-river migrations.
    We then investigated what types of habitat support these life 
history components and where these areas of habitat are located. We 
evaluated empirical data, published and unpublished literature, and 
solicited the views of experts. These habitat components are described 
in the ``Primary Constituent Elements'' section of this proposed rule. 
We identified known or presumed spawning sites in each of the seven 
river systems. Some spawning sites have been conclusively identified; 
others are presumed due to the presence of suitable habitat. We 
identified known or presumed sites used for resting or staging. We 
identified areas where subadult and adult Gulf sturgeon occur during 
winter to feed. These areas are primarily in the marine or estuarine 
environment; young-of-year and juveniles feed mostly in the riverine 
environment. As a component of the above identifications, we gathered 
all available data on locations and habitat use of marked (tagged) 
fish.
    To determine which areas should be proposed as critical habitat, we 
then evaluated where the necessary constituent elements of Gulf 
sturgeon habitat intersected with areas known to be used by both marked 
and unmarked fish. Detailed location data, where available, is included 
with each proposed unit description in the ``Critical Habitat Unit 
Descriptions'' section of this proposed rule. Because most of the 
sturgeon species' upstream movement is for spawning (Bane 1997; J. 
Hightower, U.S. Geological Survey (USGS)-Biological Resources Division, 
pers. comm. 2002), we have determined that the proposal should include 
areas as far upstream as the furthest known or presumed spawning site. 
Therefore, in rivers where spawning sites have been confirmed, the 
proposed units extend upstream to a geographically identifiable point 
such as a river confluence above those sites. In areas where spawning 
sites are presumed but not confirmed, we have included river reaches 
that contain the primary

[[Page 39114]]

constituent elements necessary for spawning (e.g., appropriate 
substrate, and water quality and quantity), if those areas occur within 
close proximity of Gulf sturgeon historic and/or current sightings or 
captures, and if they are still accessible to sturgeon (e.g., not 
blocked by dams). The proposed riverine critical habitat units include 
areas that continue to offer at least periodic passage of Gulf sturgeon 
to known and presumed spawning sites. Successful reproduction and 
recent recruitment have been documented in each riverine unit by eggs, 
larvae, and/or juveniles, or by a mixed age structure. We are proposing 
to protect spawning habitats from a catastrophic occurrence by 
including both the main stem spawning sites and at least one tributary 
site.
    We have included riverine habitat from the river mouth up to and 
including spawning grounds in order to provide sufficient habitat 
necessary for the other riverine life stages of Gulf sturgeon while 
they reside in the riverine habitats. Habitat necessary for these life 
stages includes habitat for summer resting or staging areas, juvenile 
feeding, entire young-of-year life cycle, passage throughout the river, 
and passage into and out of estuarine habitat. All of the selected 
areas are known to be used by Gulf sturgeon for some portion of their 
life cycle.
    Subadult and adult sturgeon use estuarine and marine areas for 
feeding and passage between river systems. Designation of critical 
habitat units encompassing estuaries and bays adjacent to the riverine 
units discussed above would protect unobstructed passage of sturgeon 
from feeding areas to spawning grounds. In evaluating the estuarine and 
marine areas, we first reviewed where Gulf sturgeon from the seven 
adjacent riverine units have been documented by telemetry relocations 
and tag returns from incidental captures. We also considered areas for 
which we have Gulf sturgeon sightings and targeted and incidental 
capture records. When available, we reviewed habitat data (e.g., 
bathymetry, substrate type, and benthic organisms) associated with 
these estuarine and marine systems and compared these data with studies 
pertaining to the habitat requirements and preferences of Gulf 
sturgeon. We also evaluated data for evidence of critical migratory 
pathways between the river systems and the adjacent bays and Gulf of 
Mexico that allow Gulf sturgeon to travel to important feeding areas, 
as well as allow for the occasional travel to non-natal rivers for 
possible spawning and genetic interchange. Where documented 
interchanges have occurred, but no telemetry data exist to identify the 
migratory path used (e.g., between the Pascagoula River and Yellow 
River, the Pascagoula and Choctawhatchee River, and between Suwanee 
River and Apalachicola River), we have not proposed a migration route. 
We then assessed the Gulf sturgeon's overall use of estuarine and 
marine waters and delineated specific critical habitat boundaries.
    Migration and feeding may take place via the Gulf Intracoastal 
Waterway (GIWW) in some of the proposed units. Portions of the GIWW 
that consist primarily of excavated land cuts and canals have been 
excluded from this designation because they were not available 
historically, and, therefore, are not considered to be evolutionarily 
significant.
    This proposed designation includes a significant portion, but not 
all, of the species' historic range. The fourteen proposed critical 
habitat units include riverine main stems and in some cases 
tributaries, distributaries (a river branch flowing away from the main 
stem in the floodplain) and adjacent estuarine and marine areas that 
contain one or more of the primary constituent elements essential for 
the conservation of the Gulf sturgeon (see ``Primary Constituent 
Elements'' section). The omission of some historically occupied river 
drainages and estuarine and marine areas from this proposed critical 
habitat designation does not diminish their individual or cumulative 
importance to the species. Rather, it is our determination that the 
seven riverine units with known spawning and seven associated estuarine 
and marine units included in this proposed rule include the habitats 
essential for the conservation of the Gulf sturgeon. With unobstructed 
passage in the estuarine and marine habitat, the subpopulations within 
the proposed designated critical habitat units may eventually populate 
presently unoccupied coastal river systems or augment adjacent 
surviving small subpopulations.
    Although the Mobile River Basin is the largest Gulf of Mexico 
drainage east of the Mississippi River, it has been extensively 
impounded and modified for navigation. Further, there have been 
relatively limited reports of captures and no evidence of reproduction 
of Gulf sturgeon from that system for many years. Gulf sturgeon have 
been reported from other river systems. Some of these other systems 
historically supported a commercial fishery (e.g., Mobile River, 
Ochlockonee River) and some may support small reproducing 
subpopulations (e.g., Techefuncte River, Ochlockonee River, Mobile 
River); however, there is no recent documented spawning and we have no 
evidence at this time that these systems are essential to the 
conservation of the species. Therefore, we have not proposed them as 
critical habitat.
    The data available to us are insufficient to support a 
determination that Lake Maurepas, Breton and Chandeleur Sounds, the 
Mississippi River Delta, St. Louis, Biloxi, Mobile, Perdido, St. 
Andrews, St. Joseph, Ochlockonee, or Apalachee Bays are essential to 
the conservation of the species. Records within the majority of these 
bays are relatively scarce. Although some Gulf sturgeon from the seven 
subpopulations may occasionally use these bays for winter feeding, 
there are insufficient data to support these bays' regular winter use 
or importance and no documented spawning. Therefore, we have not 
proposed these bays for designation as critical habitat.
    The amount of research and status surveys conducted on many 
subpopulations is limited. Because of the limited availability of data 
specific to each river system and specific to the Gulf sturgeon's use 
of the marine environment, we are aware that habitat other than that 
identified in this proposed rule may later be found to be essential to 
the conservation of Gulf sturgeon. To the extent feasible, we will 
continue, with the assistance of other Federal, State, and private 
researchers, to conduct surveys, research, and conservation actions on 
the species and its habitat in areas designated and not designated as 
critical habitat. If additional information becomes available on the 
species' biology, distribution, and threats, we will evaluate the need 
to designate additional critical habitat, delete or reduce critical 
habitat, or refine the boundaries of critical habitat. Gulf sturgeon 
surviving in, or moving to rivers that are not being proposed for 
critical habitat will continue to receive protection under the section 
7 of the Act jeopardy standard and the section 9 of the Act 
prohibitions on take (see ``Critical Habitat'' section).

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas to propose 
as critical habitat, we are required to base critical habitat 
determinations on the best scientific data available and to focus on 
those physical and biological features (primary constituent elements) 
that are essential to the conservation of the species and that may 
require special management considerations or

[[Page 39115]]

protection. Such requirements include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, and 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historical geographical and ecological 
distribution of a species.
    Based on the best available information, primary constituent 
elements essential for the conservation of the Gulf sturgeon include 
the following:
    (1) Abundant prey items, such as detritus, aquatic insects, worms, 
and/or molluscs, within riverine habitats for larval and juvenile life 
stages; and abundant prey items, such as amphipods, lancelets, 
polychaetes, gastropods, ghost shrimp, isopods, molluscs and/or 
crustaceans, within estuarine and marine habitats for subadult and 
adult life stages.
    (2) Riverine spawning sites with substrates suitable for egg 
deposition and development, such as limestone outcrops and cut 
limestone banks, bedrock, large gravel or cobble beds, marl, soapstone, 
or hard clay;
    (3) A flow regime (i.e., the magnitude, frequency, duration, 
seasonality, and rate-of-change of freshwater discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
in the riverine environment, including migration, breeding site 
selection, courtship, egg fertilization, resting, and staging, and for 
maintaining spawning sites in suitable condition for egg attachment, 
egg sheltering, resting, and larval staging;
    (4) Water quality, including temperature, salinity, pH, hardness, 
turbidity, oxygen content, and other chemical characteristics, 
necessary for normal behavior, growth, and viability of all life 
stages;
    (5) Sediment quality, including texture and other chemical 
characteristics, necessary for normal behavior, growth, and viability 
of all life stages; and
    (6) Safe and unobstructed migratory pathways necessary for passage 
within and between riverine, estuarine, and marine habitats.

Need for Special Management Consideration or Protection

    An area designated as critical habitat contains one or more of the 
primary constituent elements that are essential to the conservation of 
the species (see ``Primary Constituent Elements'' section), and that 
may require special management considerations or protection. Various 
activities in or adjacent to each of the critical habitat units 
described in this proposed rule may affect one or more of the primary 
constituent elements that are found in the unit. These activities 
include, but are not limited to, those listed in the ``Effects of 
Critical Habitat'' section as ``Federal Actions That May Affect 
Critical Habitat and Require Consultation.'' For example, riverine 
spawning sites for Gulf sturgeon must be relatively sediment-free for 
successful egg development and may need best management practices 
implemented in the watershed upstream to prevent an excessive 
accumulation of sediment in these areas. None of the proposed critical 
habitat units is presently under special management or protection 
provided by a legally operative plan or agreement for the conservation 
of the Gulf sturgeon. Therefore, we have determined that the proposed 
units may require special management or protection.

Proposed Critical Habitat Designation

    The areas proposed for designation as critical habitat for the Gulf 
sturgeon provide one or more of the primary constituent elements 
described above. Tables 1 and 2 summarize the location and extent of 
proposed critical habitat. All of the proposed areas require special 
management considerations to ensure their contribution to the 
conservation of the Gulf sturgeon. The boundaries of proposed critical 
habitat units are described generally below.

   Table 1.--Approximate Linear Distance of the Proposed Riverine Critical Habitat Units for the Gulf Sturgeon
                           [Main stems are listed first and tributaries are indented]
----------------------------------------------------------------------------------------------------------------
                                                                                          River
       Critical habitat unit river systems                       State                 kilometers   River  miles
----------------------------------------------------------------------------------------------------------------
1. Pearl (East, West, and all distributaries)...  Louisiana/Mississippi.............           616           383
    Bogue Chitto................................  ..................................           153            95
2. Pascagoula...................................  Mississippi.......................           130            81
    Leaf........................................  ..................................           164           102
    Bowie.......................................  ..................................            24            15
    Chickasawhay................................  ..................................           232           144
    Big Black Creek.............................  ..................................            10             6
3. Escambia Florida/Alabama.....................  ..................................            93            58
    Conecuh.....................................  ..................................           128            79
    Sepulga.....................................  ..................................            11             7
4. Yellow.......................................  Florida/Alabama...................           136            84
    Blackwater..................................  ..................................            18            11
    Shoal.......................................  ..................................            13             8
5. Choctawhatchee...............................  Florida/Alabama...................           224           139
    Pea.........................................  ..................................            92            57
6. Apalachicola.................................  Florida...........................           172           107
    Brothers....................................  ..................................            23            14
7. Suwannee.....................................  Florida...........................           286           178
    Withlacoochee...............................  ..................................            19            12
                                                                                     ---------------------------
        Total...................................  ..................................         2,544         1,580
----------------------------------------------------------------------------------------------------------------


[[Page 39116]]


  Table 2.--Approximate Area of the Proposed Estuarine and Marine Critical Habitat Units for the Gulf Sturgeon
----------------------------------------------------------------------------------------------------------------
   Critical habitat unit estuarine and marine
                     systems                                     State                Kilometers\2\    Miles\2\
----------------------------------------------------------------------------------------------------------------
8. Lake Borgne..................................  Louisiana/........................           718           277
    Little Lake.................................  Mississippi/......................             8             3
    Lake Pontchartrain..........................  Alabama...........................           763           295
    Lake St. Catherine..........................  ..................................            26            10
    The Rigolets................................  ..................................            13             5
    Mississippi Sound...........................  ..................................         1,879           725
    MS near shore Gulf..........................  ..................................           160            62
9. Pensacola Bay................................  Florida...........................           381           147
10. Santa Rosa Sound............................  Florida...........................           102            39
11. Near shore Gulf of Mexico...................  Florida...........................           442           171
12. Choctawhatchee Bay..........................  Florida...........................           321           124
13. Apalachicola Bay............................  Florida...........................           683           264
14. Suwannee Sound..............................  Florida...........................           546           211
                                                                                     ---------------------------
        Total...................................  ..................................         6,042         2,333
----------------------------------------------------------------------------------------------------------------

Critical Habitat Unit Descriptions

    The river reaches within units 1 to 7 proposed as critical habitat 
lie within the ordinary high water line. As defined in 33 CFR 329.11, 
the ordinary high water line on non-tidal rivers is the line on the 
shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas.
    The downstream limit of the riverine units is the mouth of each 
river. The mouth is defined as rkm 0 (rm 0). Although the interface of 
fresh and saltwater, referred to as the saltwater wedge, occurs within 
the lower-most reach of a river, for ease in delineating critical 
habitat units, we are defining the boundary between the riverine and 
estuarine units as rkm 0 (rm 0).
    Regulatory jurisdiction in coastal areas extends to the line on the 
shore reached by the plane of the mean (average) high water (MHW) (33 
CFR 329.12(a)(2)). All bays and estuaries within units 8 to 14, 
therefore, lie below the MHW lines. Where precise determination of the 
actual location becomes necessary, it must be established by survey 
with reference to the available tidal datum, preferably averaged over a 
period of 18.6 years. Less precise methods, such as observation of the 
``apparent shoreline,'' which is determined by reference to physical 
markings, lines of vegetation, may be used only where an estimate is 
needed of the line reached by the mean high water.
    The term 72 COLREGS is defined as demarcation lines which delineate 
those waters upon which mariners shall comply with the International 
Regulations for Preventing Collisions at Sea, 1972 and those waters 
upon which mariners shall comply with the Inland Navigation Rules (33 
CFR 80.01). The waters inside of these lines are Inland Rules waters 
and the waters outside the lines are COLREGS waters. These lines are 
defined in 33 CFR 80, and have been used for identification purposes to 
delineate boundary lines of the estuarine and marine habitat Units 8, 
9, 11, and 12.

Unit 1. Pearl River System in St. Tammany and Washington Parishes in 
Louisiana and Walthall, Hancock, Pearl River, Marion, Lawrence, 
Simpson, Copiah, Hinds, Rankin, and Pike Counties in Mississippi

    Unit 1 includes the Pearl River main stem from the spillway of the 
Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, downstream to 
where the main stem river drainage discharges at its mouth joining Lake 
Borgne, Little Lake, or The Rigolets in Hancock County, Mississippi, 
and St. Tammany Parish, Louisiana. It includes the main stems of the 
East Pearl River, West Pearl River, West Middle River, Holmes Bayou, 
Wilson Slough, downstream to where these main stem river drainages 
discharge at the mouths of Lake Borgne, Little Lake, or The Rigolets. 
Unit 1 also includes the Bogue Chitto River main stem, a tributary of 
the Pearl River, from its confluence with Lazy Creek just upstream of 
its crossing with Mississippi State Highway 570, Pike County, 
Mississippi, downstream to its confluence with the West Pearl River, 
St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is the 
ordinary high water line on each bank of the associated rivers and 
shorelines.
    The majority of recent Gulf sturgeon sightings in the Pearl River 
drainage have occurred downstream of the Pools Bluff sill on the Pearl 
River, near Bogalusa, Washington Parish, Louisiana, and downstream of 
the Bogue Chitto sill on the Bogue Chitto River in St. Tammany Parish, 
Louisiana. Between 1992 and 1996, 257 Gulf sturgeon were captured from 
the Pearl River system (West Middle River, Bogue Chitto River, East 
Pearl River, and West Pearl River). The subpopulation was estimated at 
292 fish, of which only 2 to 3 percent were adults (Morrow et al. 
1998b). The annual mortality rate was calculated to be 25 percent. 
Preliminary results from captures between 1992 and 2001 suggest a 
stable subpopulation of 430 fish, with approximately 300 adults 
(Rogillio et al. in prep.). These Pearl River distributaries are used 
for migration to spawning grounds, summer resting holes, and juvenile 
feeding. Gulf sturgeon have been captured in all of these 
distributaries and all are proposed as critical habitat.
    The presence of juvenile Gulf sturgeon (1 to 4 years old) in the 
Pearl River system indicates successful spawning at some location in 
the Pearl River system. It is believed that the only suitable habitat 
for spawning for the Pearl River subpopulation of Gulf sturgeon occurs 
above the sills on the Pearl River and the Bogue Chitto River with 
access to these areas only during high flows (Morrow et al. 1996, 
Morrow et al. 1998a). Bedrock and limestone outcropping that are 
typical of Gulf sturgeon spawning areas in other systems do not occur 
here. However, within the Pearl drainage, spawning areas likely include 
soapstone, hard clay, gravel and rubble areas, and undercut banks 
adjacent to these substrates (W. Slack pers. comm. 2001). Although the 
Pools Bluff sill blocks

[[Page 39117]]

upstream movement on the Pearl River during periods of low water, 
potential spawning sites have been identified upstream of the sill at 
various locations between Monticello, Lawrence County, Mississippi, and 
the Ross Barnett Dam spillway, Hinds and Rankin Counties, Mississippi 
(F. Parauka pers. comm. 2002). Gulf sturgeon have also been recently 
reported as far upstream as Jackson, Hinds County, Mississippi (Morrow 
et al. 1996, Lorio 2000). The Ross Barnett Dam upstream of Jackson 
prevents sturgeon movement further upstream at all flow conditions. 
Identified suitable spawning habitat, presence of juvenile fish, and 
documented adult captures support our inclusion of the Pearl River up 
to the spillway of the Ross Barnett Dam.
    The Bogue Chitto sill, located on the Bogue Chitto River near its 
confluence with the Pearl River, also hinders movement of Gulf sturgeon 
upstream of the sill except during high water flows. Suitable spawning 
habitat occurs within the Bogue Chitto upriver of the sill (F. Parauka 
pers. comm. 2002, W. Slack pers. comm. 2001) and juvenile, adult and 
subadult Gulf sturgeon have been documented on the Bogue Chitto River 
as far upstream as McComb, Pike County, Mississippi (D. Oge, Department 
of Environmental Quality, pers. comm. 2002; F. Parauka pers. comm. 
2002; W. Slack pers. comm. 2001). We, therefore, have proposed as 
critical habitat the main stem of the Bogue Chitto River upstream of 
Quins Bridge (Mississippi State Highway 570) to its confluence with 
Lazy Creek.

Unit 2. Pascagoula River System in Forrest, Perry, Greene, George, 
Jackson, Clarke, Jones, and Wayne Counties, Mississippi

    Unit 2 includes all of the Pascagoula River main stem and its 
distributaries, portions of the Bowie, Leaf, and Chickasawhay 
tributaries, and all of the Big Black Creek tributary. It includes the 
Bowie River main stem beginning at its confluence with Bowie Creek and 
Okatoma Creek, Forrest County, Mississippi, downstream to its 
confluence with the Leaf River, Forrest County, Mississippi. The Leaf 
River main stem beginning from Mississippi State Highway 588, Jones 
County, Mississippi, downstream to its confluence with the Chickasawhay 
River, George County, Mississippi is included. The main stem of the 
Chickasawhay River from the mouth of Oaky Creek, Clarke County, 
Mississippi, downstream to its confluence with the Leaf River, George 
County, Mississippi is included. Unit 2 also includes Big Black Creek 
main stem from its confluence with Black and Red Creeks, Jackson 
County, Mississippi, to its confluence with the Pascagoula River, 
Jackson County, Mississippi. All of the main stem of the Pascagoula 
River from its confluence with the Leaf and Chickasawhay Rivers, George 
County, Mississippi, to the discharge of the East and West Pascagoula 
Rivers into Pascagoula Bay, Jackson County, Mississippi, is included. 
The lateral extent of Unit 2 is the ordinary high water line on each 
bank of the associated rivers and shorelines.
    Subpopulation estimates, calculated from sturgeon captures in 1999 
and 2000 in the summer holding areas on the Pascagoula River, range 
between 162 and 216 individuals (Heise et al. 1999a, Ross et al. 
2001b). Due to the sampling technique, these estimates are based 
primarily on large fish and do not account for juvenile or subadult 
fish (S. Ross, University of Southern Mississippi (USM), pers. comm. 
2001).
    Gulf sturgeon spawning on the Bowie River was confirmed via egg 
collection in 1999 (Slack et al. 1999, Heise et al. 1999a). This is the 
only confirmed spawning area in the Pascagoula River drainage. 
Downstream, the Bowie River is sometimes used as a summer holding area 
(Ross et al. 2001b). Gulf sturgeon have been documented using the area 
above the known spawning habitat (Reynolds 1993, W. Slack pers. comm. 
2002). Additional suitable spawning habitat has been identified in this 
upstream reach (F. Parauka pers. comm. 2002), and since Gulf sturgeon 
have rarely been documented upstream of spawning grounds, we have also 
included the 19 rkm (12 rmi) of river reach upstream of the confirmed 
spawning grounds. Confirmed use for spawning and use as a summer 
holding area support the inclusion of the Bowie River as proposed 
critical habitat.
    Documented sightings of Gulf sturgeon and identified suitable 
spawning habitat upstream to Mississippi State Highway 588 (Reynolds 
1993, W. Slack pers. comm. 2002, F. Parauka pers. comm. 2002), 
confirmed use as a migration corridor, and confirmed use by juvenile 
Gulf sturgeon (W. Slack pers. comm. 2002) support the inclusion of the 
Leaf River as proposed critical habitat.
    Documented sightings of Gulf sturgeon using the Chickasawhay River 
(Miranda and Jackson 1987, Reynolds 1993, Ross et al. 2001b) upstream 
to Quitman (Ross et al. 2001b), and the presence of apparently suitable 
spawning habitat at Quitman (F. Parauka pers. comm. 2002), support the 
inclusion of this river reach as proposed critical habitat for 
spawning, migration, and juvenile feeding. We have included the 
suitable spawning habitat located within .8 rkm (.5 rmi) upstream of 
Mississippi State Road 512 and have extended the proposed designation 9 
rkm (5.5 rmi) upstream to the confluence with Oaky Creek for ease of 
identification.
    Gulf sturgeon use the West and East distributaries of the 
Pascagoula River during spring and fall migrations (Ross et al. 2001b). 
Summer resting areas have been consistently documented on Big Black 
Creek and on the Pascagoula River (Ross et al. 2001a and b). Confirmed 
use for migration and/or summer resting areas and probable feeding use 
by juveniles support our inclusion of these river reaches.

Unit 3. Escambia River System in Santa Rosa and Escambia Counties, 
Florida and Escambia, Conecuh, and Covington Counties, Alabama

    Unit 3 includes the Conecuh River main stem beginning just 
downstream of the spillway of Point A Dam, Covington County, Alabama, 
downstream to the Florida State line, where its name changes to the 
Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa 
Counties, Florida. It includes the entire main stem of the Escambia 
River downstream to its discharge into Escambia Bay and Macky Bay, 
Escambia and Santa Rosa Counties, Florida. All of the distributaries of 
the Escambia River including White River, Little White River, Simpson 
River, and Dead River, Santa Rosa County, Florida are included. The 
Sepulga River main stem from Alabama County Road 42, Conecuh and 
Escambia Counties, Alabama, downstream to its confluence with the 
Conecuh River, Escambia County, Alabama, is also included. The lateral 
extent of Unit 3 is the ordinary high water line on each bank of the 
associated lakes, rivers and shorelines.
    Sufficient data are not yet available to estimate historic or 
current subpopulation sizes of the Escambia River drainage 
subpopulation. Collection and tagging of Gulf sturgeon, monitoring, and 
eventual subpopulation estimates are in the initial phases on the 
Escambia River in Florida and the Conecuh River in Alabama.
    Suitable spawning habitat (Parauka and Giorgianni in prep.) and a 
reported larval sighting (N. Craft, Department of Environmental 
Protection (DEP), pers. comm. 2001), just below the Point A Dam (221 
rkm (137 rmi) on the Conecuh River support inclusion of critical 
habitat upstream to the Point A Dam. The Point A Dam prevents sturgeon 
movement further upstream at all flow conditions. In addition, spawning 
has

[[Page 39118]]

been confirmed between rkm 161 and 170 (rmi 100 and 105.6) (Craft et 
al. 2001) on the Conecuh River. The use of the river main stem for 
spawning, adult resting areas, juvenile feeding and resting, and the 
use for migration to these sites supports our inclusion of the 
Escambia/Conecuh River main stem as proposed critical habitat for the 
Escambia River subpopulation of Gulf sturgeon.
    Historic sightings reported from the 1910s and 1920s, and as 
recently as 1991, have been documented in Escambia County, Alabama, on 
the Sepulga River (Reynolds 1993). Estes (1991) describes the Sepulga 
as having smooth rock walls, and long pools with stretches of rocky 
shoals and sandbars. We included the Sepulga River reach upstream to 
Alabama County Road 42, Escambia County, Alabama, because it has 
suitable spawning habitat and documented sightings.
    We believe it is most likely that Gulf sturgeon use the Escambia 
River main stem and all the distributaries for exiting and entering the 
Escambia/Conecuh River. Gulf sturgeon have been documented to use 
distributaries near the river mouth within other systems (e.g., 
Suwannee, Pearl, and Pascagoula River systems) for migration into and 
out of riverine habitat. We, therefore, have included all 
distributaries on the Escambia River system (i.e., White River, Little 
White River, Simpson River, and Dead River) in Unit 3.

Unit 4. Yellow River System in Santa Rosa and Okaloosa Counties, 
Florida and Covington County, Alabama

    Unit 4 includes the Yellow River main stem from Alabama State 
Highway 55, Covington County, Alabama, downstream to its discharge at 
Blackwater Bay, Santa Rosa County, Florida. All Yellow River 
distributaries (including Weaver River and Skim Lake) discharging into 
Blackwater Bay are included. The Shoal River main stem, a Yellow River 
tributary, from Florida Highway 85, Okaloosa County, Florida, to its 
confluence with the Yellow River, is included. The Blackwater River 
from its confluence with Big Coldwater Creek, Santa Rosa County, 
Florida, downstream to its discharge into Blackwater Bay is included. 
Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater 
River are included. The lateral extent of Unit 4 is the ordinary high 
water line on each bank of the associated lakes, rivers and shorelines.
    The USGS conducted a subpopulation study in the Yellow River system 
during the spring (May to July) and fall (October) of 2001. Based on 
the capture of 98 fish in the spring and the capture/recapture of 94 
fish that fall, the USGS estimated the subpopulation to consist of 580 
Gulf sturgeon of 1 m (3.3 ft) or greater in size (M. Randall, USGS, 
pers. comm. 2001). This estimate excludes fish younger than 3 to 4 
years of age.
    Five distinct limestone outcrops have been documented as possible 
spawning sites on the Yellow River, between rkm 43 and 134 (rmi 26.7 
and 83.3) (Parauka and Giorgianni in prep.). Several sites consist of 
brittle marl and limestone, and others of porous limestone. The lowest 
downstream site (rkm 43 (rmi 26.7)) is a primitive rock revetment, a 
manmade structure with a fair amount of rock substrate (Craft et al. 
2001). In recent years, Alabama State biologists have observed young-
of-year Gulf sturgeon near limestone outcrops 3.2 km (2 mi) south of 
Alabama State Highway 55 (136 rkm (84 rmi)) (Craft et al. 2001), which 
confirms that reproduction is occurring within this subpopulation. The 
river upstream of Alabama State Highway 55 is shallow, sandy, and 
creek-like and, therefore, not believed suitable for spawning (M. 
Randall pers. comm. 2001; F. Parauka pers.comm. 2001; G. Morgan, 
Conecuh National Forest, pers. comm. 2001). Preliminary surveys located 
four potential summer resting areas on the Yellow River main stem 
(Craft et al. 2001). Recent fish captures and the confirmation of 
spawning at the furthest upstream spawning habitat location near 
Alabama State Highway 55 support our inclusion of the Yellow River main 
stem to Alabama State Highway 55 (136 rkm (84 rmi)) as proposed 
critical habitat for the Yellow River subpopulation of Gulf sturgeon.
    The inclusion of the Shoal River, from the Yellow River confluence 
upstream to the Florida Highway 85 bridge (13 rkm (8 rmi)) , is 
supported as proposed critical habitat because it is a confirmed summer 
resting area (Lorio 2000). The potential for distributaries Weaver 
River and Skim Lake to be used for migration to and from the Yellow 
River system (Craft et al. 2001) supports their inclusion as proposed 
critical habitat. The current and historic use of deep holes by Gulf 
sturgeon on the Blackwater River main stem and between Wright Basin and 
Cooper Basin demonstrate the importance of this area for summer resting 
and staging (Reynolds 1993, Craft et al. 2001) and support its 
inclusion as proposed critical habitat for the Yellow River 
subpopulation.

Unit 5. Choctawhatchee River System in Holmes, Washington, and Walton 
Counties, Florida and Dale, Coffee, Geneva, and Houston Counties, 
Alabama

    Unit 5 includes the Choctawhatchee River main stem from its 
confluence with the west and east fork of the Choctawhatchee River, 
Dale County, Alabama, downstream to its discharge at Choctawhatchee 
Bay, Walton County, Florida. The distributaries discharging into 
Choctawhatchee Bay known as Mitchell River, Indian River, Cypress 
River, and Bells Leg are included. The Boynton Cutoff, Washington 
County, Florida, which joins the Choctawhatchee River main stem, and 
Holmes Creek, Washington County, Florida, are included. The section of 
Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek, 
Washington County, Florida, is included. The Pea River main stem, a 
Choctawhatchee River tributary, from the Elba Dam, Coffee County, 
Alabama, to its confluence with the Choctawhatchee River, Geneva 
County, Alabama, is included. The lateral extent of Unit 5 is the 
ordinary high water line on each bank of the associated rivers and 
shorelines.
    Preliminary estimates of the size of the Gulf sturgeon 
subpopulation in the Choctawhatchee River system are 2,000 to 3,000 
fish over 61 cm (24 inches (in)) total length (F. Parauka pers. comm. 
2001).
    Biologists have located Gulf sturgeon within .8 rkm (.5 rmi) 
downstream of the Elba Dam, Coffee County, Alabama, on the Pea River 
(Lorio 2000) and have identified suitable spawning habitat from the 
Elba Dam to the Pea River mouth (Parauka and Giorgianni in prep., 
Zehfuss et al. in prep.). The Elba Dam prevents sturgeon movement 
further upstream at all flow conditions. This river reach has one 
confirmed spawning site, and Gulf sturgeon often use the lower reach 
for summer resting (Fox et al. 2000, Hightower et al. in press). 
Suitable spawning and resting habitat, confirmed spawning, and young-
of-year and juvenile feeding (F. Parauka pers. comm. 2001) support 
inclusion of the Pea River reach as proposed critical habitat.
    Five spawning sites and seven resting areas have been identified on 
the Choctawhatchee River main stem between the river mouth (0 rkm (0 
rmi)) and upstream to 150 rkm (93 rmi) (Hightower et al. in press, 
Zehfuss et al. in prep.). Biologists have identified suitable spawning 
habitat (limestone outcrops) periodically between 135 rkm (84 rmi) to 
the confluence of the West

[[Page 39119]]

Fork Choctawhatchee River and East Fork Choctawhatchee River (224 rkm 
(139 rmi)) (H. Blalock-Herod, FWS, pers. comm. 2002; Parauka and 
Giorgianni in prep.; Zehfuss et al. in prep.). Fox et al. (2000) 
located a male at 150 rkm (93 rmi) and another male in spawning 
condition near Newton (214 rkm (133 rmi)) on the Choctawhatchee River, 
8 rkm (5 rmi) downstream of the confluence of the West Fork 
Choctawhatchee River and East Fork Choctawhatchee River. Since Gulf 
sturgeon rarely occur upstream of spawning grounds, we have included up 
to the confluence of West Fork Choctawhatchee River and East Fork 
Choctawhatchee River for ease of identification and with the 
probability of unconfirmed spawning grounds. Suitable habitat, 
confirmed spawning, and young-of-year and juvenile feeding support the 
inclusion of the Choctawhatchee River main stem as proposed critical 
habitat.
    No sturgeon have been documented within Holmes Creek, except for 
the section that connects the Choctawhatchee River and Boynton Cutoff, 
north and south. We have included this river section of Holmes Creek 
because it acts as part of the Choctawhatchee River main stem. In 1994, 
Gulf sturgeon were captured during March and April at the mouths of 
Indian River, Cypress River, and Bells Leg, indicating that sturgeon 
probably use these distributaries as migratory corridors to and from 
the Choctawhatchee River main stem. All distributaries, including the 
Indian River, Cypress River, Bells Leg, and Mitchell River, are 
included as proposed critical habitat.

Unit 6. Apalachicola River System in Franklin, Gulf, Liberty, Calhoun, 
Jackson, and Gadsen Counties, Florida

    Unit 6 includes the Apalachicola River mainstem, beginning from the 
Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida, 
downstream to its discharge at East Bay or Apalachicola Bay, Franklin 
County, Florida. All Apalachicola River distributaries, including the 
East River, Little St. Marks River, St. Marks River, Franklin County, 
Florida, to their discharge into East Bay and/or Apalachicola Bay are 
included. The entire main stem of the Brothers River, Franklin and Gulf 
Counties, Florida, a tributary of the Apalachicola River, is included. 
The lateral extent of Unit 6 is the ordinary high water line on each 
bank of the associated rivers and shorelines.
    Based on mark/recapture studies conducted in 1998 and 1999 in the 
Apalachicola River downstream of Jim Woodruff Lock and Dam, the summer 
subpopulation of subadult and adult Gulf sturgeon was estimated to be 
between 270 and 321 individuals (FWS 1998, 1999). Seventy-one sturgeon 
were collected in the upper Brothers River, upstream of the Brickyard 
Cutoff and downstream of Bearman Creek between June and September 1999 
(FWS 1999, Lorio 2000). Gulf sturgeon captured on the Brothers River 
have not been included in the Apalachicola River subpopulation size 
estimate although they are believed to be part of the subpopulation.
    The Gulf sturgeon became restricted to the portion of the 
Apalachicola River downstream of the Jim Woodruff Lock and Dam upon the 
construction of the dam in the 1950s. Wooley et al. (1982) documented 
the capture of two Gulf sturgeon larvae on the Apalachicola River just 
downstream of the Jim Woodruff Lock and Dam, thereby confirming 
successful spawning up to the dam. Resting aggregations are often seen 
at the base of the dam. Seven potential spawning sites have been 
identified in the upper Apalachicola River between Highway 20 and the 
Jim Woodruff Lock and Dam (120 to 171 km (76 to 106 rmi)) (Parauka and 
Giorgianni in prep.). Suitable spawning and resting habitat, confirmed 
spawning, and young-of-year and juvenile feeding support inclusion of 
the Apalachicola River as proposed critical habitat.
    The entire main stem of the Brothers River, a major tributary of 
the Apalachicola River, is also included as proposed critical habitat. 
Spawning has not been documented within this tributary, but an 
important resting area is located in the uppermost section of the 
Brothers River between Brickyard Cutoff and Bearman Creek (FWS 1999, 
Lorio 2000). Sturgeon use the lower Brothers River as a resting and 
possible osmoregulation area (staging) before migrating into the 
estuarine and marine habitats for winter feeding (Wooley and Crateau 
1985). The Apalachicola River distributaries, including the East River, 
St. Marks River and Little St. Marks River, are included, based on 
information derived from other systems. Gulf sturgeon tend to use more 
than just the main stem for migration into and out of the river systems 
(e.g., Suwannee, Choctawhatchee, and Pearl River systems).

Unit 7. Suwannee River System in Hamilton, Suwannee, Madison, 
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida

    Unit 7 includes the Suwannee River main stem, beginning from its 
confluence with Long Branch Creek, Hamilton County, Florida, downstream 
to the mouth of the Suwannee River. It includes all the Suwannee River 
distributaries, including the East Pass, West Pass, Wadley Pass, and 
Alligator Pass, Dixie and Levy Counties, Florida, to their discharge 
into the Suwannee Sound or the Gulf of Mexico. The Withlacoochee River 
main stem from Florida State Road 6, Madison and Hamilton Counties, 
Florida, to its confluence with the Suwannee River is included. The 
lateral extent of Unit 7 is the ordinary high water line on each bank 
of the associated rivers and shorelines.
    The Suwannee River supports the largest Gulf sturgeon subpopulation 
among the coastal rivers of the Gulf of Mexico (Huff 1975, Gilbert 
1992). Sulak and Clugston (1999) reported 5,344 uniquely tagged 
Suwannee River sturgeons from 1986 to 1998. Multiple models using 
various age classes have been used to estimate the subpopulation size 
of Gulf sturgeon on the Suwannee River system. Chapman et al. (1997) 
estimated the subpopulation at 3,152 fish greater than age 6. Sulak and 
Clugston's (1999) estimate was 7,650 individuals greater than 61 cm (24 
in) total length and older than age 2. Pine et al. (2001) estimated the 
Suwannee River subpopulation at 5,500 individuals ages 2 to 25. Based 
on intensive egg sampling efforts conducted between 1993 and 1998, 
Sulak and Clugston (1999) estimated that 30 to 90 female fish spawn per 
year.
    Marchant and Shutters (1996) collected two Gulf sturgeon eggs in 
April 1993 on the Suwannee River. These were the first eggs reported 
from the wild for Gulf sturgeon. Between 1993 and 1998, three spawning 
sites were confirmed with the collection of Gulf sturgeon eggs on 
artificial substrate samplers (Marchant and Shutters 1996, Sulak and 
Clugston 1999). Young-of-year have been documented using between rkm 10 
to 237 (rmi 6.2 to 147.3) on the Suwannee River main stem (Carr et al. 
1996a, Sulak and Clugston 1999). The young-of-year sturgeon located at 
rkm 237 (rmi 147.3), north of Interstate 75, by Sulak and Clugston 
(1999) was likely spawned in the river as far upstream as Big Shoals 
and was captured on its way downstream (M. Randall pers. comm. 2002). 
It is believed that the farthest upstream that sturgeon spawn during 
high water is Big Shoals, near White Springs, Hamilton and Columbia 
Counties, Florida, but adult sturgeon are probably unable to move 
upstream of Big Shoals (Huff 1975; K. Sulak, USGS, pers. comm. 2002; M. 
Randall pers. comm. 2002).

[[Page 39120]]

Suitable spawning habitat has been identified upstream to Big Shoals 
(Huff 1975; H. Blalock-Herod, FWS, pers. comm. 2002). Foster and 
Clugston (1997) located five major resting areas throughout the 
Suwannee River. A deep river bend and a shallow sandy section were 
characteristic features of the resting areas (Foster and Clugston 
1997). Confirmed use for spawning, identified and probable spawning 
habitat upstream to Big Shoals, young-of year and juvenile feeding, and 
summer resting support the inclusion of the Suwannee River as proposed 
critical habitat. For ease of identification, the Suwannee River has 
been included upstream of Big Shoals .8 rkm (.5 rmi) to its confluence 
with Long Branch Creek.
    Adult Gulf sturgeon sightings and suitable spawning habitat on the 
lower Withlacoochee River near Florida State Road 141, Hamilton and 
Madison Counties, Florida, support the inclusion of this area as 
proposed critical habitat. We have included shoals (5 rkm (3 rmi)) 
located just upstream of where sturgeon have been observed as possible 
spawning habitat, and have stopped at Florida State Road 6 (14 rkm (9 
rmi)), upstream from the shoals, for ease of identification.
    The Suwannee River branches near its mouth into the East Pass and 
West Pass. Gulf sturgeon adults use the East Pass and West Pass for 
emigration and immigration (Mason and Clugston 1993, Edwards et al. in 
prep.). The West pass is divided into two primary channels--Wadley 
Pass, connected to the Gulf of Mexico by a straight dredged channel 
across the northern portion of the Sound, and Alligator Pass, used by 
juveniles (Huff 1975), connected to the Gulf of Mexico by an undredged, 
natural channel. Confirmed use of the East Pass, West Pass, and 
Alligator Pass, and probable use of the Wadley Pass by adult and 
juvenile Gulf sturgeon for migration and feeding support the inclusion 
of all distributaries of the Suwannee River as proposed critical 
habitat.

Unit 8. Lake Pontchartrain, Lake St. Catherine, The Rigolets, Little 
Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans, St. 
Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and 
Harrison Counties in Mississippi, and in Mobile County, Alabama

    Unit 8 encompasses Lake Pontchartrain east of the Lake 
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. 
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. 
Proposed critical habitat follows the shorelines around the perimeters 
of each included lake. The Mississippi Sound includes adjacent open 
bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy 
Bay, and barrier island passes, including Ship Island Pass, Dog Keys 
Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of 
the Mississippi Sound is the shoreline of the mainland between Heron 
Bay Point, Mississippi and Point aux Pins, Alabama. Proposed critical 
habitat excludes St. Louis Bay, north of the railroad bridge across its 
mouth; Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of 
Biloxi. The southern boundary follows along the broken shoreline of 
Lake Borgne created by low swampy islands from Malheureux Point to Isle 
au Pitre. From the northeast point of Isle au Pitre, the boundary 
continues in a straight north-northeast line to the point 1 nautical 
mile (nm) (1.9 km) seaward of the western most extremity of Cat Island 
(30 deg.13'N, 89 deg.10'W). The southern boundary continues 1 nm (1.9 
km) offshore of the barrier islands and offshore of the 72 COLREGS 
lines at barrier island passes (defined at 33 CFR 80.815(c), (d) and 
(e)) to the eastern boundary. Between Cat Island and Ship Island there 
is no 72 COLREGS line. We therefore, have defined that section of the 
southern boundary as 1 nm (1.9 km) offshore of a straight line drawn 
from the southern tip of Cat Island to the western tip of Ship Island. 
The eastern boundary is the line of longitude 88 deg.18.8'W from its 
intersection with the shore (Point aux Pins) to its intersection with 
the southern boundary. The lateral extent of Unit 8 is the MHW line on 
each shoreline of the included water bodies or the entrance to rivers, 
bayous, and creeks.
    The Pearl River and its distributaries flow into The Rigolets, 
Little Lake, and Lake Borgne, the western extension of Mississippi 
Sound. The Rigolets connect Lake Pontchartrain and Lake St. Catherine 
with Little Lake and Lake Borgne. The Pascagoula River and its 
distributaries flow into Pascagoula Bay and Mississippi Sound.
    This proposed unit provides juvenile, subadult and adult feeding, 
resting, and passage habitat for Gulf sturgeon from the Pascagoula and 
the Pearl River subpopulations. One or both of these subpopulations 
have been documented by tagging data, historic sightings, and 
incidental captures as using Pascagoula Bay, The Rigolets, the eastern 
half of Lake Pontchartrain, Little Lake, Lake St. Catherine, Lake 
Borgne, Mississippi Sound, within 1 nm (1.9 km) of the nearshore Gulf 
of Mexico adjacent to the barrier islands and within the passes (Davis 
et al. 1970, Reynolds 1993, Rogillio 1993, Morrow et al. 1998a, Ross et 
al. 2001a, Rogillio et al. in prep., F. Parauka pers. comm. 2002). 
Substrate in these areas ranges from sand to silt, all of which contain 
known Gulf sturgeon prey items (Abele 1986, American Fisheries Society 
1989, Menzel, 1971).
    The Rigolets is a 11.3 km (7 mi) long and about 0.6 km (0.4 mi) 
wide passage connecting Lake Pontchartrain and Lake Borgne (U.S. 
Department of Commerce (USDOC) 2002). This brackish water area is used 
by adult Gulf sturgeon as a staging area for osmoregulation and for 
passage to and from wintering areas (Rogillio et al. in prep.). Lake 
St. Catherine is a relatively shallow lake with depths averaging 
approximately 1.2 m (4 ft), connected to The Rigolets by Sawmill Pass. 
Bottom sediments in Sawmill Pass are primarily silt, while Lake 
Catherine's bottom is composed of silt and sand (Barett 1971). 
Incidental catches of Gulf sturgeon are documented from Lake St. 
Catherine and Sawmill Pass (Reynolds 1993; H. Rogillio, Louisiana 
Department of Wildlife and Fisheries, pers. comm. 2002). Based on the 
proximity of Little Lake, Lake St Catherine, and Sawmill Pass to The 
Rigolets and Pearl River, we believe these areas are also used for 
staging and feeding and, therefore, are including them with the 
Rigolets as proposed critical habitat.
    Rogillio (1990) and Morrow et al. (1996) indicated that Lake 
Pontchartrain and Lake Borgne were used by Gulf sturgeon as wintering 
habitat, with most catches during late September through March. Lake 
Pontchartrain is 57.9 km (36 mi) long, 35.4 km (22 mi) wide at its 
widest point, and 3 to 4.9 m (10 to 16 ft) deep (USDOC 2002). Morrow et 
al. (1996) documented Gulf sturgeon from the Pearl River system using 
Lake Pontchartrain (verified by tags) and summarized existing Gulf 
sturgeon records, which indicated greater use of the eastern half of 
Lake Pontchartrain. Although Rogillio et al. (in prep.) did not 
relocate any of their sonic tagged adult Gulf sturgeon in Lake 
Pontchartrain, H. Rogillio (pers. comm. 2002) believes the eastern part 
of this lake to be an important winter habitat for juveniles and 
subadults based on previous records. We believe that Gulf sturgeon feed 
in Lake Pontchartrain during the winter. The Lake Pontchartrain 
Causeway, twin toll highway bridges, extends 33.6 km (20.9 mi) across 
Lake Pontchartrain from Indian Beach on the south shore to Lewisburg 
and Mandeville on the north shore. Sediment data from Lake 
Pontchartrain indicate sediments have a

[[Page 39121]]

greater sand content east of the causeway (Barret 1976, Manheim et al. 
2002). Most records from Lake Pontchartrain are located east of the 
causeway, with concentrations near Bayou Lacombe and Goose Point, both 
on the eastern north shore (Reynolds 1993, Morrow et al. 1996). Gulf 
sturgeon have also been documented west of the causeway, generally near 
the mouths of small river systems (Davis 1970). We have excluded the 
western half of Lake Pontchartrain, however, because we believe that 
the sturgeon using these areas are coming from these western 
tributaries and not the Pearl River.
    Lake Pontchartrain connects by The Rigolets with Lake Borgne. Lake 
Borgne, the western extension of Mississippi Sound, is partly separated 
from Mississippi Sound by Grassy Island, Half Moon (Grand) Island and 
Le Petit Pass Island. Lake Borgne is approximately 14.3 km (23 mi) in 
length, 3 to 6 km (5 to 10 mi) in width and 1.8 to 3 m (6 to 10 ft) in 
depth (USDOC 2002). Most of Lake Borgne sediment is clay and silt 
(Barett 1971). Many Gulf sturgeon were anecdotally reported as taken 
incidentally in shrimp trawls in Lake Borgne 0.6 to 1.2 km (1 to 2 mi) 
south of the Pearl River between August and October from the 1950s 
through the 1980s (Reynolds 1993). There are twenty-two additional 
records of Gulf sturgeon in Lake Borgne (D. Walther, FWS, pers. comm. 
2002). Known locations are spread out around the perimeter of the Lake, 
including at the mouth of The Rigolets, Violet Canal, Bayou Bienvenue, 
Polebe, Alligator Point, and at Half Moon Island (Reynolds 1993). We 
are proposing to include all of Lake Borgne as critical habitat.
    The Mississippi Sound is separated from the Gulf of Mexico by a 
chain of barrier islands, including Cat, Ship, Horn, and Petit Bois 
Islands. Natural depths of 3.7-5.5 m (12 to 18 ft) are found throughout 
the Sound and a channel 3.7 m (12 ft) deep has been dredged where 
necessary from Mobile Bay to New Orleans (USDOC 2001). Incidental 
captures and recent studies confirm that both Pearl River and 
Pascagoula River adult Gulf sturgeon winter in the Mississippi Sound, 
particularly around barrier islands and barrier islands passes 
(Reynolds 1993, Ross et al. 2001a, Rogillio et al. in prep.). 
Pascagoula Bay is adjacent to the Mississippi Sound. Gulf sturgeon 
exiting the Pascagoula River move both east and west, with telemetry 
recoveries as far east as Dauphin Island and as far west as Cat Island 
and the entrance to Lake Pontchartrain, Louisiana (Ross et al. 2001a). 
Gulf sturgeon from the Pearl River subpopulation have been documented 
scattered between Cat Island, Ship Island, Horn Island, and east of 
Petit Bois Islands to the Alabama State line (Rogillio et al. in 
prep.). Gulf sturgeon have also been documented within 1 nm (1.9 km) 
off the barrier islands of Mississippi Sound. We, therefore, have 
included 1 nm (1.9 km) offshore of the barrier islands of Mississippi 
Sound. Habitat used by Gulf sturgeon in the vicinity of the barrier 
islands is 1.9 to 5.9 m (6.2 to 19.4 ft) deep (average 4.2 m (13.8 
ft)), with clean sand substrata (Heise et al. 1999b, Ross et al. 2001a, 
Rogillio et al. in prep.). Preliminary data from substrate samples 
taken in the barrier island areas indicate that all samples contained 
lancelets (Ross et al. 2001a). Inshore locations where Gulf sturgeon 
were located (Deer Island, Round Island) were 1.9 to 2.8 m (6.2 to 9.2 
ft) deep and all had mud (mostly silt and clay) substrata (Heise et al. 
1999b) typical of substrates supporting known Gulf sturgeon prey.

Unit 9. Pensacola Bay System in Escambia and Santa Rosa Counties, 
Florida

    Unit 9 includes Pensacola Bay and its adjacent main bays and coves. 
These include Big Lagoon, Escambia Bay, East Bay, Blackwater Bay, Bayou 
Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and Catfish Basin. 
All other bays, bayous, creeks, and rivers are excluded at their 
mouths. The western boundary is the Florida State Highway 292 Bridge 
crossing Big Lagoon to Perdido Key. The southern boundary is the 72 
COLREGS line between Perdido Key and Santa Rosa Island (defined at 33 
CFR 80.810 (g)). The eastern boundary is the Florida State Highway 399 
Bridge at Gulf Breeze, Florida. The lateral extent of Unit 9 is the MHW 
line on each shoreline of the included water bodies.
    The Pensacola Bay system includes five interconnected bays, 
including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and 
the Santa Rosa Sound. The Santa Rosa Sound is addressed separately in 
proposed unit 10. The Escambia River and its distributaries (Little 
White River, Dead River, and Simpson River) empty into Escambia Bay, 
including Bass Hole Cove, Saultsmar Cove, and Macky Bay. The Yellow 
River empties into Blackwater Bay. The entire system discharges into 
the Gulf of Mexico, primarily through a narrow pass at the mouth of 
Pensacola Bay.
    The Pensacola Bay system provides winter feeding and migration 
habitat for Gulf sturgeon from the Escambia River and Yellow River 
subpopulations. Over the past four years, researchers of the Florida 
Department of Environment Protection (FDEP) have conducted tracking 
studies in the Pensacola Bay system to observe Gulf sturgeon winter 
migrations. They have identified specific areas in the bays where 
Escambia River and Yellow River Gulf sturgeon collect, or migrate 
through, during the fall and winter season. These studies also 
identified two main habitat types where Gulf sturgeon concentrate 
during winter months. Movement is generally along the shoreline area of 
Pensacola Bay. Gulf sturgeon showed a preference for several areas in 
the bay, including Redfish Point, Fort Dickens, and Escribano Point, 
near Catfish Basin (FWS 1998, Craft et al. 2001). Sandy shoal areas, 
located along the south and east side of Garcon Point, south shore of 
East Bay (Redfish Point area) and near Fair Point, appear to be 
commonly used, especially in the fall and early spring. During 
midwinter, common areas are in deep holes located north of the barrier 
island at Ft. Pickens, south of the Pensacola Naval Air Station, and at 
the entrance of Pensacola Pass. The depth in these areas ranges from 6 
to 12.1 m (20 to 40 ft). Other areas where tagged fish were frequently 
located include Escribano Point, near Catfish Basin, and the mouth of 
the Yellow River. Previous incidental captures of Gulf sturgeon have 
been recorded in Pensacola Bay, Big Lagoon, and Bayou Grande (Reynolds 
1993, Lorio 2000).

Unit 10. Santa Rosa Sound in Escambia, Santa Rosa, and Okaloosa 
Counties, Florida

    Unit 10 includes the Santa Rosa Sound, bounded on the west by the 
Florida State Highway 399 bridge in Gulf Breeze, Florida. The eastern 
boundary is the U.S. Highway 98 bridge in Fort Walton Beach, Florida. 
The northern and southern boundaries of Unit 10 are formed by the 
shorelines to the MHW line or by the entrance to rivers, bayous, and 
creeks.
    The Santa Rosa Sound is a lagoon between the mainland and Santa 
Rosa Island that connects Pensacola Bay in the west with Choctawhatchee 
Bay in the east. The Sound extends approximately 57.9 km (35.9 mi) 
along an east-west orientation, varying in width between 0.32 and 3.5 
km (0.2 to 2.2 mi) (FDEP 1993). The Intracoastal Waterway transects the 
sound. The Santa Rosa Sound is proposed as critical habitat because we 
believe it provides one continuous migratory pathway between 
Choctawhatchee Bay, Pensacola Bay, and the Gulf of Mexico for feeding 
and genetic interchange. Within the last 3,000 years, periodic shoaling 
closed the opening of

[[Page 39122]]

Choctawhatchee Bay to the Gulf of Mexico. For many years, the Santa 
Rosa Sound provided the only way for Choctawhatchee River Gulf sturgeon 
to migrate to the Gulf of Mexico (Wakeford 2001). Recent locations of 
subadult and adult Gulf sturgeon within the Santa Rosa Sound confirm 
its present use by the Choctawhatchee River subpopulations (F. Parauka 
pers. comm. 2002, Fox et al. in press). The Escambia and Yellow River 
subpopulations may also use this area due to its close proximity. Gulf 
sturgeon have been located mid-channel and in shoreline areas in 2 to 
5.2 m (6.6 to 17.1 ft) depths and sand substrate. The approximate 
length of the proposed critical habitat unit is 52.8 km (33 miles). 
Bridges were chosen as the eastern and western boundaries for ease in 
identification. Any portion of the sound not included in this unit is 
captured by the adjacent critical habitat units.

Unit 11. Florida Nearshore Gulf of Mexico Unit in Escambia, Santa Rosa, 
Okaloosa, Walton, Bay, and Gulf Counties in Florida

    Unit 11 includes a portion of the Gulf of Mexico as defined by the 
following boundaries. The western boundary is the line of longitude 
87 deg.20.0' W (approximately 1 nm (1.9 km) west of Pensacola Pass) 
from its intersection with the shore to its intersection with the 
southern boundary. The northern boundary is the MHW of the mainland 
shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 
80.810 (a-g). The southern boundary is 1 nm (1.9 km) offshore of the 
northern boundary. The eastern boundary is the line of longitude 
85 deg.17.0' W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with 
the southern boundary.
    Unit 11 includes winter feeding and migration habitat for Gulf 
sturgeon from the Yellow River, Choctawhatchee River, and Apalachicola 
River subpopulations. Telemetry relocation data suggest that these 
subpopulations feed in nearshore Gulf of Mexico waters between their 
natal river systems (Fox et al. in press, F. Parauka pers. comm. 2002). 
Gulf sturgeon from the Choctawhatchee River subpopulation have been 
documented both east and west of Choctawhatchee Bay (F. Parauka pers. 
comm. 2002, Fox et al. in press). In the winter of 2001-2002, the USGS 
and FWS attached pop-up satellite tags to 20 Gulf sturgeon (12 from the 
Suwannee River, 4 from the Choctawhatchee River, 2 from the 
Apalachicola, and 2 from the Yellow River) to investigate winter 
feeding migrations in the Gulf of Mexico. Due to a design flaw, errors 
in attachment, or sturgeon's ability to successfully knock the tags 
off, the tags failed to report reliable data with only two exceptions. 
One of the Choctawhatchee-tagged Gulf sturgeon was located in Hogtown 
Bayou in Choctawhatchee Bay. This provided no new information, as we 
already knew that some adult Gulf sturgeon overwinter in this bayou. 
The other operating tag, however, was one that had been attached to a 
Yellow River Gulf sturgeon. Sonic tracking in the vicinity of that 
Yellow River Gulf sturgeon led to the relocation of other sonic tagged 
Gulf sturgeon. Sonic-tagged individuals from three different 
subpopulations (Choctawhatchee, Yellow, and Apalachicola Rivers) were 
relocated on multiple occasions in close proximity to one another, 
suggesting an important feeding area just offshore of Mexico Beach, 
Crooked Island East, and Crooked Island West over sand substrate. The 
data suggest that Gulf sturgeon from the Yellow River, Choctawhatchee 
River, and Apalachicola River remain within 1.6 km (1 mi) of the 
coastline between these river systems (F. Parauka pers. comm. 2002). 
Examination of bathymetry data along the Gulf of Mexico coastline 
between the Pensacola Bay and Apalachicola Bay reveals that depths of 
less than 6 m (19.7 ft), within which Gulf sturgeon are generally 
found, are all contained within 1 nm (1.9 km) from shore. Gulf 
nearshore substrate contains unconsolidated, fine-medium grain sands 
which support crustaceans such as mole crabs, sand fleas, various 
amphipod species, and lancelets (Menzel 1971, Abele 1986, American 
Fisheries Society 1989). Based on their direction of movement over 
time, it appeared these Gulf sturgeon were feeding in the nearshore 
Gulf of Mexico on route to their natal rivers. Given this information 
we are including the nearshore (up to 1 nm (1.9 km)) Gulf of Mexico 
waters between Pensacola and Apalachicola Bays.

Unit 12. Choctawhatchee Bay in Okaloosa and Walton Counties, Florida

    Unit 12 includes the main body of Choctawhatchee Bay, Hogtown 
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, 
creeks, and rivers are excluded at their mouths/entrances. The western 
boundary is the U.S. Highway 98 bridge at Fort Walton Beach, Florida. 
The southern boundary is the 72 COLREGS line across East (Destin) Pass 
as defined at 33 CFR 80.810(f). The lateral extent of Unit 12 is the 
MHW line on each shoreline of the included water bodies.
    Choctawhatchee Bay provides important habitat for maintaining the 
health of subadult and adult Gulf sturgeon as evidenced by a large 
number of Gulf sturgeon overwintering in the system (FWS 1997, 1998; 
Parauka et al. in press). The Choctawhatchee Bay offers a feeding area 
for both subadults and adults (FWS 1998, Fox et al. in press). Tagged 
subadults showed a preference for shoreline habitats which are 
predominated by sandy substrates, low salinity and water depths less 
than 3 m (10 ft) (FWS 1997, 1998; Parauka et al. in press). Most adult 
Gulf sturgeon were found in shallow water (2 to 4 m (6.6 to 13.1 ft)) 
with predominantly (greater than 80 percent) sandy sediment (Fox et al. 
in press). Ghost shrimp, a component of the sturgeon diet, are 
typically found in substrates ranging from sandy mud to organic silty 
sand (Felder and Lovett 1989), and their densities were greatest 
nearshore along the middle and eastern portions of the Choctawhatchee 
Bay (Heard et al. 2000), the area frequented by the Gulf sturgeon (Fox 
et al. in press). We include the deeper central portion of the Bay in 
Unit 12 as proposed critical habitat because the Gulf sturgeon are 
known to use the deeper bay waters for movement between the shoreline 
areas (Fox et al. in press).

Unit 13. Apalachicola Bay in Gulf and Franklin County, Florida

    Unit 13 includes the main body of Apalachicola Bay and its adjacent 
sounds, bays, and the nearshore waters of the Gulf of Mexico. These 
consist of St. Vincent Sound, including Indian Lagoon; Apalachicola Bay 
including Horseshoe Cove and All Tides Cove; East Bay including Little 
Bay and Big Bay; and St George Sound, including Rattlesnake Cove and 
East Cove. Barrier Island passes (Indian Pass, West Pass, and East 
Pass) are also included. Sike's cut is excluded from the lighted buoys 
on the Gulf of Mexico side to the day boards on the bay side. The 
southern boundary includes water extending into the Gulf of Mexico 1 nm 
(1.9 km) from the MHW line of the barrier islands and from 72 COLREGS 
lines between the barrier islands (defined at 33 CFR 80.805(e-h)). The 
western boundary is the line of longitude 85 deg.17.0'W from its 
intersection with the shore (near Money Bayou between Cape San Blas and 
Indian Peninsula) to its intersection with the southern boundary. The 
eastern boundary is formed by a straight line drawn from the shoreline 
of Lanark Village at 29 deg.53.1'N, 84 deg.35.0'W to a point that is 1 
nm (1.9 km) offshore from the northeastern extremity of Dog Island at 
29 deg.49.6'N, 84 deg.33.2'W. The lateral

[[Page 39123]]

extent of Unit 13 is the MHW line on each shoreline of the included 
water bodies or the entrance of excluded rivers, bayous, and creeks.
    The Apalachicola River empties into Apalachicola Bay near Little 
Bay and Big Bay. The Apalachicola Bay system, a highly productive 
lagoon-and-barrier-island complex, encompasses 54,910 hectares (549 
km2) and consists of the bay proper, East Bay, St. George 
Sound, Indian Lagoon, and St. Vincent Sound (Wakeford 2001). It is 
relatively shallow, averaging 2 to 3 m (6.6 to 9.8 ft) in depth 
(Livingston 1983). The largest benthic habitat type found in 
Apalachicola Bay system is soft sediment, comprising approximately 70 
percent of the estuarine area (Livingston 1984). Its composition of 
sand, clay, and silt varies considerably depending on the location in 
the bay. The Apalachicola Bay connects with the Gulf of Mexico through 
several passes, including Indian Pass, West Pass, East Pass, and Sike's 
cut, a man-made opening established in the mid 1950s (Odenkirk 1989).
    Unit 13 provides winter feeding migration habitat for the 
Apalachicola River Gulf sturgeon subpopulation. Gulf sturgeon have been 
documented by sightings, incidental captures, and telemetry studies 
throughout Apalachicola Bay, East Bay, St. George Sound, St. Vincent 
Sound, and Indian Lagoon (Swift et al. 1977, Wooley and Crateau 1985, 
Odenkirk 1989, FWS 2000, F. Parauka pers. comm. 2002). Gulf sturgeon 
have also been documented in Indian Pass, West Pass, East Pass, and 
just north of Dog Island (Wooley and Crateau 1985, Odenkirk 1989, FWS 
2000, F. Parauka pers. comm. 2002). Substantial weight gains and the 
presence of suitable habitat for prey items indicate that Gulf sturgeon 
are feeding while within these bodies of water (Wooley and Crateau 
1985, Odenkirk 1989). These areas are also used for accessing adjacent 
marine and estuarine feeding areas proposed in Unit 11. Gulf sturgeon 
are believed to migrate from Apalachicola Bay into the Gulf of Mexico 
following prevailing currents and exiting primarily through the two 
most western passes (Indian and West) (Odenkirk 1989). No Gulf sturgeon 
have been documented using Sike's Cut, a man-made opening established 
in the 1950s bisecting Little St. George Island and St. George Island, 
therefore, Sike's Cut is excluded from our proposed designation.
    Tag return data from incidental captures and recent relocation data 
document Gulf sturgeon south of the Apalachicola barrier islands, 
generally within a mile of the shoreline (Odenkirk 1989, FWS 2000). On 
June 8, 1992, a commercial shrimp fishermen provided anecdotal 
information that he and other shrimp fishermen, had caught hundreds of 
Gulf sturgeon, with estimated weights generally between 50 to 60 lbs 
(22.7 to 27.2 kg), in the same location, each spring (April, May and 
June), for the past thirty years (1962 to 1992) (F. Parauka pers. comm. 
2002). The fishermen described the location as south of St. George 
Island, within a few hundred yards of the beach. He described the areas 
as adjacent to a shoal extending approximately 3.2 km (2 mi) offshore. 
Examination of bathymetric data shows that there are several shoals in 
that general vicinity. Since we are unable to confirm the specific 
location of the shoaled area described by this fisherman, we propose to 
extend this proposed critical habitat unit only 1 nm (1.9 km) offshore 
of the barrier islands bordering Apalachicola Bay and Cape San Blas, a 
distance for which we have supporting telemetry data. In doing so, we 
will still capture some of the shallow shoals extending south of the 
barrier islands in this area, which we believe provide important 
feeding substrate.

Unit 14. Suwannee Sound in Dixie and Levy Counties, Florida

    Unit 14 includes Suwannee Sound and a portion of adjacent Gulf of 
Mexico waters extending 9 nm from shore (16.7 km) out to the State 
territorial water boundary. Its northern boundary is formed by a 
straight line from the northern tip of Big Pine Island (at 
approximately 29 deg.23'N, 83 deg.12'W) to the Federal-State boundary 
at 29 deg.17'N, 83 deg.21'W. The southern boundary is formed by a 
straight line from the southern tip of Richards Island (at 
approximately 29 deg.11'N, 83 deg.04'W) to the Federal-State boundary 
at 29 deg.04'N, 83 deg.15'W. The lateral extent of Unit 14 is the MHW 
line along the shorelines and the mouths of the Suwannee River (East 
and West Pass), its distributaries and other rivers, creeks, or water 
bodies.
    The Suwannee River system is unique among Gulf sturgeon river 
systems in that the river flows directly into the Suwannee Sound and 
Gulf of Mexico without any intervening barrier islands. Suwannee Sound 
is a shallow (typically less than 2 m (6.6 ft)), estuarine basin, a 
little less than 10 nm (8 km) long and a little over 4 nm (8 km) wide 
at its widest point. It is enclosed on its seaward side by Suwannee 
Reef, an approximately 14.6 nm (27 km) long arc of oyster reefs and 
shoals (Edwards et al. in prep.). The bathymetry of waters off the 
coastline and north and south of Suwannee Sound is different from the 
waters adjacent to other systems. Shallow waters are not confined to 
the nearshore environment, and depths less than 6 m (19.7 ft) extend 9 
to 10 mi (14.5 to 16.1 km) off the coastline.
    Telemetry tracking data confirm that subadult and adult Gulf 
sturgeon leave the river during October and November and enter Suwannee 
Sound and the nearshore Gulf of Mexico (Carr et al. 1996b, Edwards et 
al. in prep.). Tracked and relocated Gulf sturgeon move slowly and 
remained offshore of Suwannee Sound in nearby shallow (less than 6 m 
(19.7 ft)) marine/estuarine habitats for a period of two months, until 
at least mid or late December. Overall movement patterns are punctuated 
by periods of slow movement within small areas, suggesting feeding 
(Edwards et al. in prep.). Mason and Clugston (1993) found large, 
immigrating Suwannee River Gulf sturgeon fed on nearshore coastal shelf 
organisms lancelets (Branchiostoma caribaeum), brachiopods (Glottida 
pyramida), unidentified pelagic shrimps, polychaetes, unidentified 
marine molluscs, starfish and sea cucumbers. Carr et al. (1996b) found 
that adult Gulf sturgeon feed primarily on brachiopods and ghost 
shrimp, before entering the river. The consumption of brachiopods as a 
primary Gulf sturgeon food source is currently being researched by the 
University of Florida. Numerous underwater beds containing brachiopods 
have recently been located in the Suwannee River estuary and adjacent 
areas in Suwannee Sound (D. Murie and D. Parkyn pers. comm. 2002). 
Recent stomach content analyses using a non-lethal method of stomach 
pumping (lavaging) support that Gulf sturgeon from the Suwannee River 
subpopulation feed primarily on brachiopods, and to lesser amounts on 
ghost shrimp, amphipods, and worms prior to entering the river (D. 
Murie and D. Parkyn pers. comm. 2002).
    Gulf sturgeon tracking and relocation data were used to delineate 
the boundaries of this proposed critical habitat unit. In 1998, 18 out 
of 19 sonic-tagged Gulf sturgeon were consistently relocated and found 
to be concentrated in a relatively small area (115 km2 (44.4 
mi2)) offshore of Suwannee Sound (Edwards et al. in prep.). 
Specific locations within the concentration area were around Waldley 
Channel, West Gap, and Hedemon Reef. The farthest offshore area was 
Hedemon Reef, approximately 5 to 6 nm (9.3 to 11.1 km) from the 
Suwannee River opening. Previous telemetry relocation and tracking data 
collected in 1996 documented Gulf sturgeon using Gulf of Mexico waters 
as far out as 9 nm (16.7

[[Page 39124]]

km) (Sulak and Clugston 1999, Edwards et al. in prep.). More recently, 
on March 22, 2002, two Gulf sturgeon were observed jumping in the area 
of 29 deg.14'N, 83 deg.18'W, further substantiating the Gulf sturgeon's 
use of shallow State waters further offshore ( 6 nm (11.1 
km) (Harris pers. comm. 2002). Benthic samples were taken where the 
fish were jumping and were comprised of fine sand substrate and 
lancelets. Although lancelets are recovered less frequently than 
brachiopods in the stomachs of Suwannee River Gulf sturgeon, this may 
be a result of quicker decomposition of lancelets during digestion 
compared to brachiopods. Our proposed designation, therefore, includes 
waters out to 9 nm (16.7 km) to encompass these areas that we believe 
are essential for recovery. The northern extent of the tracked sturgeon 
concentration area depicted in Edwards et al. (in prep.) corresponds 
approximately to the northern-most extremity of Big Pine Island. We, 
therefore, have chosen that easy-to-identify location for the northern 
limit of this proposed critical habitat unit. The southern extent of 
the concentration area depicted in Edwards et al. (in prep.) 
corresponds approximately to Richards Island. In addition to the 
telemetry data, Gulf sturgeon sightings are frequently reported around 
Deer Island and Derrick Key (F. Chapman, UF, pers. comm. 2002). Derrick 
Key is approximately 1 m (1.6 km) offshore of Richards Island. Based on 
these data, we propose the southernmost extremity of Richards Island 
for the southern limit of Unit 14.
    Although Gulf sturgeon have been relocated both north and south of 
this proposed critical habitat area (Reynolds 1993, F. Chapman pers. 
comm. 2002, Edwards et al. in prep.), these records are relatively rare 
and spread out over approximately 643.7 km (400 mi) of coastline (from 
Charlotte Harbor to Apalachicola Bay). Because shallow waters believed 
to be used primarily by Gulf sturgeon are not confined to the nearshore 
environment, we have no way of estimating which other areas might be 
essential for feeding or movement. Gulf sturgeon may congregate in 
certain areas or diffuse throughout the entire area. Without additional 
information we cannot currently identify other areas to propose as 
critical habitat.

Land Ownership

    Upon statehood in 1811 for Louisiana, 1817 for Mississippi, 1819 
for Alabama, and 1845 for Florida, these States were granted ownership 
of lands beneath tidally influenced and navigable waters up to the high 
water mark (Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)). It is 
possible that prior sovereigns or the States have made grants to 
private parties which include lands below mean high waters of the 
navigable waters included within this rule. Thus, this rule may affect 
limited parcels of private land. However, we believe that the majority 
of lands proposed here as critical habitat are owned by the States of 
Louisiana, Mississippi, Alabama, and Florida. The majority of riparian 
lands bordering riverine critical habitat units are in private 
ownership. Table 3 summarizes public lands adjacent to designated 
critical habitat units.

  Table 3.--Public Lands Adjacent to Designated Critical Habitat Units
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Unit 1. Pearl--Lefleur's Bluff SP, Pearl River WMA, Bogue Chitto NWR,
 Old River WMA, National Space Technology Laboratories (National
 Aeronautics and Space Administration (NASA))
Unit 2. Pascagoula--Desoto NF, Pascagoula River WMA, Ward Bayou WMA, MS
 Sandhill Crane NWR.
Unit 3. Escambia--Lower Escambia River WtrMA, Conecuh NF.
Unit 4. Yellow--Yellow River WtrMA, Eglin Air Force Base, Conecuh NF,
 Blue Spring WMA, Blackwater River Recreational Area.
Unit 5. Choctawhatchee--Choctawhatchee River SF, Choctawhatchee River
 Delta Preserve, Choctawhatchee River WtrMA.
Unit 6. Apalachicola--Chattahoochee Nature Park, Torreya SP,
 Apalachicola Bluffs and Ravines Preserve, Apalachicola WMA,
 Apalachicola River WtrMA, Apalachicola NF, Apalachicola National
 Estuarine Research Reserve.
Unit 7. Suwannee--Ft. Union CA, Holton Creek CA, Suwannee River SP CA,
 Twin Rivers SF, Madison Co. CA, Anderson Spring CA, Charles Spring CA,
 Allen Mill Pond CA, Peacock Spring CA, Little River CA, Troy Springs
 CA, Grady CA, Stuart Landing CA, Hatchbend CA, Rock Bluff CA, Log
 Landing CA, Wannee CA, Fanning Springs SRA, Andrews WMA, Manatee
 Springs SP, Fowler's Bluff CA, Cummer Sanctuary, Lower Suwannee NWR,
 Troy Springs SP, Convict Spring CA, Yellow Jacket CA, Suwannee River
 SP, Big Shoals SP, Big Shoals CA, Camp Branch CA, Deep Creek CA,
 Stephen Foster State Folk Culture Center, Suwannee Valley CA, Swift
 Creek CA, Woods Ferry CA.
Unit 8. Lake Borgne, Mississippi Sound, Lake Pontchartrain--Biloxi
 Marshland Corporation WMA, Bayou Sauvage NWR, Big Branch Marsh NWR,
 Grand Bay NWR, Gulf Islands NS, Buccaneer SP, St. Hospital WMA,
 Fontainebleau SP, St. Tammany SWR, Pearl River WMA, Fort Pike State
 Historic Site.
Unit 9. Pensacola Bay--Gulf Islands NS, Eglin AFB, Pensacola Naval Air
 Station, Garcon Point WMD, Yellow River WtMR, Lower Escambia River Mgt.
 Area, Bay Bluffs Park, Escambia Bay Bluffs, Fort Pickens AP, Yellow
 River Marsh AP.
Unit 10. Santa Rosa Sound--Gulf Islands NS, Eglin AFB.
Unit 11. Near Shore GOM--Gulf Islands NS, Eglin AFB (main base and Cape
 San Blas), St. Vincent NWR, St. Joe SP, Salina Park, Tyndall AFB, St.
 Andrew SP, Camp Helen SRA, Deer Lake SP, Grayton SRA, Topsail Hill St.
 Preserve, Henderson SRA, Pensacola Naval Air Station, Perdido Key SRA,
 Fort Pickens AP, St. Andrew Bay AP, St. Joseph Bay AP.
Unit 12. Choctawhatchee Bay--Choctawhatchee River Delta Preserve, Rocky
 Bayou State Recreation SRA, Eglin AFB, Basin Bayou Recreation Area.
Unit 13. Apalachicola Bay--St. Vincent NWR, St. George Island SP,
 Apalachicola WMA, Apalachicola National Estuarine Research Reserve,
 Apalachicola Bay AP.
Unit 14. Suwannee Sound--Lower Suwannee NWR, Cedar Keys NWR, Big Bend
 Seagrasses AP.
------------------------------------------------------------------------
*Abbreviations--AFB=Air Force Base, AP=Aquatic Preserve, CA=Conservation
  Area, NF=National Forest, NS=National Seashore, NWR=National Wildlife
  Refuge, SCA=State Commemorative Area, SF=State Forest, SP=State Park,
  SRA=State Recreation Area, SWR=State Wildlife Refuge, WMA=Wildlife
  Management Area, WMD=Water Management District, WtrMA=Water Management
  Area.

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the

[[Page 39125]]

destruction or adverse modification of designated critical habitat. 
This requirement is met through section 7 consultation under the Act. 
Our regulations define ``jeopardize the continued existence'' as to 
engage in an action that reasonably would be expected, directly or 
indirectly, to reduce appreciably the likelihood of both the survival 
and recovery of a listed species in the wild by reducing the 
reproduction, numbers, or distribution of that species (50 CFR 402.02). 
``Destruction or adverse modification of designated critical habitat'' 
is defined as a direct or indirect alteration that appreciably 
diminishes the value of the critical habitat for both the survival and 
recovery of the species (50 CFR 402.02). Such alterations include, but 
are not limited to, adverse changes to the physical or biological 
features, i.e., the primary constituent elements, that were the basis 
for determining the habitat to be critical.
    The relationship between a species' survival and its recovery has 
been a source of confusion to some in the past. We believe that a 
species' ability to recover depends on its ability to survive into the 
future when its recovery can be achieved; thus, the concepts of long-
term survival and recovery are intricately linked. However, in the 
March 15, 2001, decision of the United States Court of Appeals for the 
Fifth Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 
245 F.3d 434) regarding our previous not prudent finding, the Court 
found our definition of destruction or adverse modification as 
currently contained in 50 CFR 402.02 to be invalid. In response to this 
decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.

Conference for Proposed Critical Habitat

    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to result in the destruction or adverse 
modification of proposed critical habitat. The regulations for 
interagency cooperation regarding proposed critical habitat are 
codified at 50 CFR 402.10. During a conference on the effects of a 
Federal action on proposed critical habitat, we make non-binding 
recommendations on ways to minimize or avoid adverse effects of the 
action. We document these recommendations and any conclusions reached 
in a conference report provided to the Federal agency and to any 
applicant involved.
    If requested by the Federal agency and deemed appropriate by us, 
the conference may be conducted in accordance with the procedures for 
formal consultation under 50 CFR 402.14. We may adopt an opinion issued 
at the conclusion of the conference as our biological opinion when the 
critical habitat is designated by final rule, but only if new 
information or changes to the proposed Federal action would not 
significantly alter the content of the opinion.

Consultation for Designated Critical Habitat

    If a Federal action may affect a listed species or its designated 
critical habitat, the action agency must initiate consultation with us 
(50 CFR 402.14). Through this consultation, we would advise the agency 
whether the action would likely jeopardize the continued existence of 
the species or adversely modify its critical habitat.
    When we issue a biological opinion that concludes that an action is 
likely to result in the destruction or adverse modification of critical 
habitat, we must provide reasonable and prudent alternatives to the 
action, if any are identifiable. Reasonable and prudent alternatives 
are actions identified during consultation that can be implemented in a 
manner consistent with the intended purpose of the proposed action, are 
consistent with the scope of the action agency's authority and 
jurisdiction, are economically and technologically feasible, and would 
likely avoid the destruction or adverse modification of critical 
habitat (50 CFR 402.02).

Reinitiation of Prior Consultations

    A Federal agency may request a conference with us for any 
previously reviewed action that is likely to destroy or adversely 
modify proposed critical habitat and over which the agency retains 
discretionary involvement or control, as described above under 
``Conference for Proposed Critical Habitat.'' Following designation of 
critical habitat, regulations at 50 CFR 402.16 require a Federal agency 
to reinitiate consultation for previously reviewed actions that may 
affect critical habitat and over which the agency has retained 
discretionary involvement or control.

Federal Actions That May Destroy or Adversely Modify Gulf Sturgeon 
Critical Habitat

    Section 4(b)(8) of the Act requires us, in any proposed or final 
rule designating critical habitat, to briefly describe and evaluate 
those activities that may adversely modify such habitat, or that may be 
affected by such designation.
    Federal actions that, when carried out, funded or authorized by a 
federal agency, may destroy or adversely modify critical habitat for 
the Gulf sturgeon include, but are not limited to:
    (1) Actions that would appreciably reduce the abundance of riverine 
prey for larval and juvenile sturgeon, or of estuarine and marine prey 
for juvenile and adult Gulf sturgeon, within a designated critical 
habitat unit, such as dredging; dredged material disposal; 
channelization; in-stream mining; and land uses that cause excessive 
turbidity or sedimentation.
    (2) Actions that would appreciably reduce the suitability of Gulf 
sturgeon spawning sites for egg deposition and development within a 
designated critical habitat unit, such as impoundment; hard-bottom 
removal for navigation channel deepening; dredged material disposal; 
in-stream mining; and land uses that cause excessive sedimentation.
    (3) Actions that would alter the flow regime (the magnitude, 
frequency, duration, seasonality, and rate-of-change of freshwater 
discharge over time) of a riverine critical habitat unit such that it 
is appreciably impaired for the purposes of Gulf sturgeon migration, 
resting, staging, breeding site selection, courtship, egg 
fertilization, egg deposition, and egg development, such as 
impoundment; water diversion; and dam operations.
    (4) Actions that would alter water quality within a designated 
critical habitat unit, including temperature, salinity, pH, hardness, 
turbidity, oxygen content, and other chemical characteristics, such 
that it is appreciably impaired for normal Gulf sturgeon behavior, 
reproduction, growth, or viability, such as dredging; dredged material 
disposal; channelization; impoundment; in-stream mining; water 
diversion; dam operations; land uses that cause excessive turbidity; 
and release of chemicals, biological pollutants, or heated effluents 
into surface water or connected groundwater via point sources or 
dispersed non-point sources.
    (5) Actions that would alter sediment quality within a designated 
critical habitat unit such that it is appreciably impaired for normal 
Gulf sturgeon behavior, reproduction, growth, or viability, such as 
dredged material disposal; channelization; impoundment; in-stream 
mining; land uses that cause excessive sedimentation; and release of 
chemical or biological pollutants that accumulate in sediments.
    (6) Actions that would obstruct migratory pathways within and 
between adjacent riverine, estuarine, and marine

[[Page 39126]]

critical habitat units, such as dams, dredging, point-source-pollutant 
discharges, and other physical or chemical alterations of channels and 
passes that restrict Gulf sturgeon movement.

Previous Section 7 Consultations

    Many section 7 consultations for Federal actions affecting the Gulf 
sturgeon and its habitat have preceded this critical habitat proposal. 
The action agencies have included the U.S. Army Corps of Engineers 
(COE), other Department of Defense (DOD) agencies, the U.S. Coast 
Guard, the National Park Service, the Federal Highway Administration, 
the Minerals Management Service (MMS), the Federal Energy Regulatory 
Commission, and others. We have also conducted intra-service section 7 
consultations on our own actions.
    Since listing, the FWS has conducted 320 informal and 14 formal 
consultations, and NMFS has conducted 70 informal and 4 formal 
consultations involving Gulf sturgeon. The informal consultations, all 
of which concluded with a finding that the Federal action would not 
affect or would not likely adversely affect the Gulf sturgeon, 
addressed a wide range of actions including navigation, beach 
nourishment, Gulf of Mexico fishery management planning, oil and gas 
leases, power plants, bridges, pipelines, breakwaters, rip-rap, levees 
and other flood-protection structures, piers, bulkheads, jetties, 
military actions, and in-stream gravel mining. The formal 
consultations, which followed a finding that the Federal action may 
affect Gulf sturgeon, have dealt exclusively with navigation projects, 
oil and gas leases, pipelines, review of water quality standards, and 
disaster recovery activities, and have resulted in biological opinions. 
Also, the Gulf sturgeon was addressed in several biological opinions 
that were triggered by may-affect determinations for other listed 
species. To date, none of the Services' opinions has concluded that a 
proposed Federal action would jeopardize the continued existence of the 
Gulf sturgeon.
    Previous biological opinions for the Gulf sturgeon have included 
discretionary conservation recommendations to the action agency. 
Conservation recommendations are activities that would avoid or 
minimize the adverse effects of a proposed action on a listed species 
or its critical habitat, help implement recovery plans, or develop 
information useful to the species' conservation.
    Previous biological opinions for the Gulf sturgeon also have 
included non-discretionary reasonable and prudent measures, with 
implementing terms and conditions, which are designed to minimize the 
proposed action's incidental take of Gulf sturgeon. Section 3(18) of 
the Act defines the term take as ``to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture or collect, or to attempt to engage 
in any such conduct.'' Harm is further defined in our regulations (50 
CFR 7.3) to include significant habitat modification or degradation 
that results in death or injury to listed species by significantly 
impairing essential behavioral patterns, including breeding, feeding, 
or sheltering.
    The conservation recommendations and reasonable and prudent 
measures provided in previous Gulf sturgeon biological opinions have 
included enforcement of marine debris and trash regulations; avoidance 
of dredging and disposal in deeper portions of the channel; monitoring 
and reporting of ``take'' events during project construction; operation 
of equipment so as to avoid or minimize take; monitoring of post-
project habitat conditions; monitoring of project-area Gulf sturgeon 
subpopulations; limiting of dredging to the minimum dimensions 
necessary; limiting of the depth of dredged material placed in disposal 
areas; arrangement of the sequence of areas for dredging to minimize 
potential harm; screening of intake structures; avoidance of riverine 
dredging during spawning months; limiting of tow times of trawl nets 
for hurricane debris cleanup; addition of specific measures for species 
protection to oil spill contingency plans; and funding of research 
useful for Gulf sturgeon conservation.
    The designation of critical habitat will have no impact on private 
landowner activities that do not require Federal funding or permits. 
Designation of critical habitat is only applicable to activities 
approved, funded or carried out by Federal agencies.
    While preparing this proposal, the FWS and the COE met several 
times to discuss and review riverine and estuarine navigation channel 
maintenance dredging requirements, formal and informal consultation 
procedures, and the biology of the Gulf sturgeon. During these 
consultations, the agencies agreed to conduct a formal programmatic 
consultation on channel maintenance activities in riverine and 
estuarine navigation channels occupied by the Gulf sturgeon. A 
programmatic consultation will consider overall effects of the project 
to the survival and recovery of the sturgeon, as well as other listed 
species, and identify reasonable and prudent measures to minimize 
incidental take of the sturgeon without altering the basic design, 
location, scope, duration, or timing of the projects. The COE is in the 
process of developing a biological assessment that will initiate the 
formal consultation process. If the biological assessment is completed 
before a final rule is published, potential effects to critical habitat 
will be considered under the conference process. All formal 
consultations concluded ``no jeopardy'' for the Gulf sturgeon.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, you may contact 
the following Services' offices:

Alabama--Daphne, FWS Ecological Services Office (334/441-5181)
Florida--Panama City, FWS Ecological Services Office (850/769-0552)
    Jacksonville, FWS Ecological Services Office (904/232-2580)
Louisiana--Lafayette, FWS Ecological Services Office (337/291-3100)
Mississippi--Jackson, FWS Ecological Services Office (601/965-4900)
NMFS--St. Petersburg, Florida, NMFS Regional Office (727/570-5312)

Jurisdictional Responsibilities for the Management of the Gulf Sturgeon

    When the Gulf sturgeon was listed on September 30, 1991 (56 FR 
49653), the Services had not resolved jurisdictional responsibilities 
for the management of the Gulf sturgeon. Both Services signed the 
listing rule in agreement that the species required protection. The 
final listing rule stated that until the jurisdictional issue was 
resolved, the FWS would be responsible for the species once the listing 
became effective. Although the issue has never been formally resolved, 
we have been operating under a verbal agreement in which the FWS 
maintains the lead for recovery actions. Consultation responsibilities 
were divided, with the FWS performing consultation review for projects 
impacting the Gulf sturgeon in the riverine and estuarine habitats, and 
NMFS performing consultation review for projects affecting the species 
in marine habitats.
    We intend to formalize Gulf sturgeon jurisdictional 
responsibilities within the final critical habitat rule. In order to 
enhance consultation coordination efficiency for the action agencies, 
we propose the following structure. The FWS will maintain primary 
responsibility for recovery actions and the NMFS will assist in and 
continue to fund recovery actions pertaining to

[[Page 39127]]

estuarine and marine habitats. In riverine units, the FWS will be 
responsible for all consultations regarding Gulf sturgeon and critical 
habitat. In estuarine units, we will divide responsibility based on the 
action agency involved. The FWS will consult with the Department of 
Transportation, the Environmental Protection Agency, the Coast Guard, 
and the Federal Emergency Management Agency. The NMFS will consult with 
the DOD, COE, MMS, and any other Federal agencies not mentioned here 
explicitly. In marine units, the NMFS will be responsible for all 
consultations regarding Gulf sturgeon and critical habitat. Any Federal 
projects that extend into the jurisdiction of both the Services will be 
consulted on by the FWS, but with NMFS assistance where needed. Each 
agency will conduct its own intra-agency consultations as necessary. We 
would like your comments on this proposal.

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available, and that we consider the economic and other relevant impacts 
of designating a particular area as critical habitat. We may exclude 
areas from critical habitat if the benefits of exclusion outweigh the 
benefits of designation, provided the exclusion will not result in the 
extinction of the species. We will conduct an analysis of the economic 
impacts of designating these areas as critical habitat prior to a final 
determination. That economic analysis will be conducted in a manner 
that is consistent with the ruling of the 10th Circuit Court of Appeals 
in N.M. Cattle Growers Ass'n v. USFWS. When completed, we will announce 
the availability of the draft economic analysis with a notice in the 
Federal Register. Comments will be accepted on the draft economic rule 
for a minimum of 30 days, during which the comment period on this rule 
will remain open.

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We are particularly interested in 
comments concerning:
    (1) The reasons why any area should or should not be determined to 
be critical habitat as provided by section 4 of the Act and 50 CFR 
424.12(a)(1), including whether the benefits of designation will 
outweigh any threats to the species due to designation;
    (2) Specific information on the number and distribution of Gulf 
sturgeon and what habitat is essential to the conservation of this 
species and why;
    (3) Whether areas within proposed critical habitat are currently 
being managed to address conservation needs of the Gulf sturgeon;
    (4) Current or planned activities in the subject areas and their 
possible impacts on proposed critical habitat;
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities;
    (6) Economic and other values associated with designating critical 
habitat for the Gulf sturgeon, such as those derived from non-
consumptive uses (e.g., hiking, camping, wildlife-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs).
    If you wish to comment on this proposed rule, you may submit your 
comments and materials concerning this proposal by any one of several 
methods (see ADDRESSES section). Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours. Respondents may request that we 
withhold their home address, which we will honor to the extent 
allowable by law. There also may be circumstances in which we would 
withhold a respondent's identity, as allowable by law. If you wish for 
us to withhold your name and/or address, you must state this request 
prominently at the beginning of your comment. However, we will not 
consider anonymous comments. To the extent consistent with applicable 
law, we will make all submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, available for public inspection in 
their entirety. Comments and materials received will be available for 
public inspection, by appointment, during normal business hours at the 
FWS Ecological Services Office in Panama City Field Office (see 
ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make proposed rules easier to understand including answers to questions 
such as the following: (1) Are the requirements in the document clearly 
stated? (2) Does the proposed rule contain technical language or jargon 
that interferes with the clarity? (3) Does the format of the proposed 
rule (grouping and order of sections, use of headings, paragraphing, 
etc.) aid or reduce its clarity? (4) Is the description of the proposed 
rule in the ``Supplementary Information'' section of the preamble 
helpful in understanding the proposed rule? (5) What else could we do 
to make the proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB). The Services are preparing a draft economic analysis of 
this proposed action. The Services will use this analysis to meet the 
requirement of section 4(b)(2) of the ESA to determine the economic 
consequences of designating the specific areas as critical habitat and 
excluding any area from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of

[[Page 39128]]

specifying such areas as part of the critical habitat, unless failure 
to designate such area as critical habitat will lead to the extinction 
of Gulf sturgeon. This analysis will be available for public comment 
before finalizing this designation. In addition, NMFS will use this 
analysis to meet the requirements of and make determinations under the 
Regulatory Flexibility Act, the Unfunded Mandates Reform Act and 
Executive Order 12866. The availability of the draft economic analysis 
will be announced in the Federal Register.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    The following discussion of the potential economic impact of this 
proposed rule reflects the conclusions of the FWS, only. This 
discussion is based upon the information regarding potential economic 
impact that is available to the FWS at this time. This assessment of 
economic effect may be modified prior to final rulemaking based upon 
development and review of the economic analysis being prepared pursuant 
to section 4(b)(2) of the ESA and E.O. 12866. This analysis is for the 
purposes of compliance with the Regulatory Flexibility Act and does not 
reflect the position of the FWS on the type of economic analysis 
required by New Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife 
Service 248 F.3d 1277 (10th Cir. 2001).
    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. A ``substantial 
number'' of small entities is more than 20 percent of those small 
entities affected by the regulation, out of the total universe of small 
entities in the industry or, if appropriate, industry segment. SBREFA 
amended the Regulatory Flexibility Act (RFA) to require Federal 
agencies to provide a statement of the factual basis for certifying 
that the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA also amended the RFA to 
require a certification statement. The FWS is hereby certifying that 
this proposed rule will not have a significant effect on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, the FWS considered the 
types of activities that might trigger regulatory impacts under this 
rule as well as the types of project modifications that may result. In 
general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the rule would affect a substantial number of small 
entities, the FWS considered the number of small entities affected 
within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting, etc.). 
The FWS applied the ``substantial number'' test individually to each 
industry to determine if certification is appropriate. In estimating 
the numbers of small entities potentially affected, the FWS also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and so 
will not be affected by critical habitat designation. Designation of 
critical habitat only affects activities conducted, funded, or 
permitted by Federal agencies; non-Federal activities are not affected 
by the designation. Federal agencies are already required to consult 
with the Services under section 7 of the Act on activities that they 
fund, permit, or implement that may affect the Gulf sturgeon. If this 
critical habitat designation is finalized, Federal agencies must also 
consult with the Services if their activities may affect designated 
critical habitat. However, the FWS believes this will result in minimal 
additional regulatory burden on Federal agencies or their applicants 
because consultation would already be required due to the presence of 
the listed species, and consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process and trigger only minimal additional 
regulatory impacts beyond the duty to avoid jeopardizing the species.
    Designation of critical habitat could result in an additional 
economic burden on small entities due to the requirement to reinitiate 
consultation for ongoing Federal activities. However, since the Gulf 
sturgeon was listed (1991), the FWS has conducted 320 informal and 14 
formal consultations, and the NMFS has conducted 70 informal and 4 
formal consultations involving this species. Most of these 
consultations involved Federal projects or permits to businesses that 
do not meet the definition of a small entity (e.g., federally sponsored 
projects, MMS lease sales). Also, a number of COE permit actions 
involved other large public entities (e.g., cities with populations 
greater than 50,000, counties, and State-sponsored activities) that 
also do not meet the definition of a small entity. No formal 
consultations involved a non-Federal entity. However, about 40 informal 
consultations were on behalf of a private business. Most of these 
informal consultations were energy-related (e.g., gas transmission 
lines, platform construction and removal, intake structures), some 
being proposed by small entities. There were also several piers, docks, 
bridges, and high-speed marine races proposed by small entities and 
authorized by either the COE or the Coast Guard. The FWS does not 
believe that the number of energy-related small entities; or small 
entities constructing docks, piers, and bridges; or high-speed marine-
race small entities meets the definition of substantial described 
above.
    The vast majority of critical habitat being proposed, with few 
exceptions, is public land involving river, stream, estuary, or marine 
habitat that is also regulated under the Clean Water Act, the Rivers 
and Harbors Act of 1899, and/or various Coast Guard authorities. Small 
entity economic activities that may require Federal authorization or 
permits include energy-related activities such as pipelines, harbors, 
and platforms; residential development including docks, piers, bridges, 
and shoreline protection; boating-related projects of small 
communities; private port operation including maintenance dredging and 
docks; small water supply or hydropower projects; and high speed marine 
events. However, the FWS is not aware of a significant number of future 
activities that would require Federal

[[Page 39129]]

permitting or authorization in these coastal and river areas. 
Historically, there has been less than two informal consultations per 
State per year involving both large and small private entities. The FWS 
is not aware of any commercial activities on the Federal lands included 
in these proposed critical habitat designations. Therefore, the FWS 
concludes that the proposed rule would not affect a substantial number 
of small entities.
    In summary, the FWS has considered whether this proposed rule would 
result in a significant economic effect on a substantial number of 
small entities. The FWS has concluded that it would not affect a 
substantial number of small entities. There would be no additional 
section 7 consultations resulting from this rule as all proposed 
critical habitat is currently occupied by the Gulf sturgeon so the 
consultation requirement has already been triggered. These 
consultations are not likely to affect a substantial number of small 
entities. This rule would result in project modifications only when 
proposed Federal activities would destroy or adversely modify critical 
habitat. While this may occur, it is not expected to occur frequently 
enough to affect a substantial number of small entities. Therefore, the 
FWS is certifying that the proposed designation of critical habitat for 
the Gulf sturgeon will not have a significant economic impact on a 
substantial number of small entities, and an initial regulatory 
flexibility analysis is not required. This determination will be 
revisited after completion of our economic analysis and revised, if 
necessary, in the final rule.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.) the agencies will use the economic analysis to further 
evaluate this situation.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule does not have significant takings implications. A 
takings implication assessment is not required. As discussed above, the 
designation of critical habitat affects only Federal agency actions. 
Since the proposed critical habitat includes only aquatic areas that 
are generally held in public trust, we believe that little or no 
private property is included in the proposed designation. Based on 
current public knowledge of the species protection and the prohibition 
against take of the species both within and outside of the designated 
areas, we do not anticipate that property values will be affected by 
the critical habitat designation. Additionally, critical habitat 
designation does not preclude development of habitat conservation plans 
and issuance of incidental take permits.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policies, we requested information from, and coordinated 
development of both the listing and the proposal to designate critical 
habitat with, appropriate State resource agencies in Louisiana, 
Mississippi, Alabama, and Florida. The designation of critical habitat 
for the Gulf sturgeon imposes no restrictions in addition to those 
currently in place, and, therefore, has little additional impact on 
State and local governments and their activities. The designation may 
have some benefit to these governments in that the areas essential to 
the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat necessary to the 
conservation of the species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long-range planning, rather than waiting for case-by-case section 7 
consultations to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are proposing to designate critical habitat in 
accordance with the provisions of the Endangered Species Act. The rule 
uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs of the Gulf sturgeon.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection for which Office of Management and Budget approval is 
required under the Paperwork Reduction Act. Information collections 
associated with ESA permits are covered by an existing OMB approval, 
and are assigned clearance No. 1018-0094, Forms 3-200-55 and 3-200-56, 
with an expiration date of July 31, 2004. Detailed information for ESA 
documentation appears at 50 CFR 17. The Service may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number.

National Environmental Policy Act (NEPA)

    The FWS has determined that it does not need to prepare an 
Environmental Assessment or an Environmental Impact Statement as 
defined by the National Environmental Policy Act of 1969 (NEPA) in 
connection with regulations adopted pursuant to section 4(a) of the 
Act. The FWS published a notice outlining its reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). NMFS has determined that this action is categorically excluded 
from NEPA requirements.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no tribal lands essential for the conservation of the Gulf 
sturgeon. Therefore, designation of critical habitat for the Gulf 
sturgeon has not been proposed on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Panama City Field Office (see ADDRESSES 
section).

Author

    The primary authors of this document are Patty Kelly, FWS, (850/
769-0552,

[[Page 39130]]

extension 228), and Jennifer Lee, NMFS, (727/570-5312) (see ADDRESSES 
section).

List of Subjects

50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

50 CFR Part 226

    Endangered and threatened species, Incorporation by reference.

Proposed Regulation Promulgation

    For the reasons outlined in the preamble, we propose to amend part 
17, subchapter B of chapter I, and part 226, subchapter C of chapter 
II, title 50 of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

    2. In Sec. 17.11(h), revise the entry for the ``Sturgeon, Gulf'' 
under ``FISHES'' in the List of Endangered and Threatened Wildlife to 
read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                Vertebrate
----------------------------------------------------                      population where                                  Critical
                                                       Historic range       endangered or       Status     When listed      habitat       Special rules
          Common name              Scientific name                           threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             Fishes
 
                   *                  *                  *                  *                  *                  *                  *
Sturgeon, Gulf.................  Acipenset           U.S.A. (AL, FL,     Entire............  T                     444  17.95(e)         17.44(v)
                                  oxyrinchus          GA, LA, MS).
                                  (=oxyrhynchus)
                                  desotoi.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(e) by adding critical habitat for the Gulf 
sturgeon (Acipenser oxyrinchus desotoi), in the same alphabetical order 
as the species occurs in Sec. 17.11(h) to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (e) Fishes. * * *

Gulf Sturgeon (Acipenser oxyrinchus desotoi)

    (1) Critical habitat units are depicted for Louisiana, Mississippi, 
Alabama, and Florida on the maps below.
    (2) The primary constituent elements essential for the conservation 
of Gulf sturgeon are those habitat components that support feeding, 
resting, and sheltering, reproduction, migration, and physical features 
necessary for maintaining the natural processes that support these 
habitat components. The primary constituent elements include:
    (i) Abundant prey items within riverine habitats for larval and 
juvenile life stages, and within estuarine and marine habitats for 
juvenile, subadult, and adult life stages;
    (ii) Riverine spawning sites with substrates suitable for egg 
deposition and development, such as limestone outcrops and cut 
limestone banks, bedrock, large gravel or cobble beds, marl, soapstone 
or hard clay;
    (iii) A flow regime (i.e., the magnitude, frequency, duration, 
seasonality, and rate-of-change of freshwater discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
in the riverine environment, including migration, breeding site 
selection, courtship, egg fertilization, resting, and staging; and 
necessary for maintaining spawning sites in suitable condition for egg 
attachment, eggs sheltering, resting, and larvae staging;
    (iv) Water quality, including temperature, salinity, pH, hardness, 
turbidity, oxygen content, and other chemical characteristics, 
necessary for normal behavior, growth, and viability of all life 
stages;
    (v) Sediment quality, including texture and other chemical 
characteristics, necessary for normal behavior, growth, and viability 
of all life stages; and
    (vi) Safe and unobstructed migratory pathways necessary for passage 
within and between riverine, estuarine, and marine habitats.
    (3) The textual unit descriptions below are the definitive source 
for determining the critical habitat boundaries. General location maps 
by unit are provided at the end of each unit description and are 
provided for general guidance purposes only, and not as a definitive 
source for determining critical habitat boundaries.
    (4) Unit 1: Pearl River System in St. Tammany and Washington 
Parishes in Louisiana and Walthall, Hancock, Pearl River, Marion, 
Lawrence, Simpson, Copiah, Hinds, Rankin, and Pike Counties in 
Mississippi.
    (i) Unit 1 includes the Pearl River main stem from the spillway of 
the Ross Barnett Dam, Hinds and Rankin Counties, Mississippi, 
downstream to where the main stem river drainage discharges at its 
mouth joining Lake Borgne, Little Lake, or The Rigolets in Hancock 
County, Mississippi, and St. Tammany Parish, Louisiana. It includes the 
main stems of the East Pearl River, West Pearl River, West Middle 
River, Holmes Bayou, Wilson Slough, downstream to where these main stem 
river drainages discharge at the mouths of Lake Borgne, Little Lake, or 
The Rigolets. Unit 1 also includes the Bogue Chitto River main stem, a 
tributary of the Pearl River, from its confluence with Lazy Creek just 
upstream of its crossing with Mississippi State Highway 570, Pike 
County, Mississippi, downstream to its confluence with the West Pearl 
River, St. Tammany Parish, Louisiana. The lateral extent of Unit 1 is 
the ordinary high water line on each bank of the associated rivers and 
shorelines.
    (ii) Maps of Unit 1 follow:
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    (5) Unit 2: Pascagoula River System in Forrest, Perry, Greene, 
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.
    (i) Unit 2 includes all of the Pascagoula River main stem and its 
distributaries, portions of the Bowie, Leaf, and Chickasawhay 
tributaries, and all of the Big Black Creek tributary. It includes the 
Bowie River main stem beginning at its confluence with Bowie Creek and 
Okatoma Creek, Forrest County, Mississippi, downstream to its 
confluence with the Leaf River, Forrest County, Mississippi. The Leaf 
River main stem beginning from Mississippi State Highway 588, Jones 
County, Mississippi, downstream to its confluence with the Chickasawhay 
River, George County, Mississippi is included. The main stem of the 
Chickasawhay River from the mouth of Oaky Creek, Clarke County, 
Mississippi, downstream to its confluence with the Leaf River, George 
County, Mississippi is included. Unit 2 also includes Big Black Creek 
main stem from its confluence with Black and Red Creeks, Jackson 
County, Mississippi, to its confluence with the Pascagoula River, 
Jackson County, Mississippi. All of the main stem of the Pascagoula 
River from its confluence with the Leaf and Chickasawhay Rivers, George 
County, Mississippi, to the discharge of the East and West Pascagoula 
Rivers into Pascagoula Bay, Jackson County, Mississippi, is included. 
The lateral extent of Unit 2 is the ordinary high water line on each 
bank of the associated rivers and shorelines.
    (ii) Maps of Unit 2 follow:
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    (6) Unit 3: Escambia River System in Santa Rosa and Escambia 
Counties, Florida and Escambia, Conecuh, and Covington Counties, 
Alabama.
    (i) Unit 3 includes the Conecuh River main stem beginning just 
downstream of the spillway of Point A Dam, Covington County, Alabama, 
downstream to the Florida State line, where its name changes to the 
Escambia River, Escambia County, Alabama, and Escambia and Santa Rosa 
Counties, Florida. It includes the entire main stem of the Escambia 
River downstream to its discharge into Escambia Bay and Macky Bay, 
Escambia and Santa Rosa Counties, Florida. All of the distributaries of 
the Escambia River including White River, Little White River, Simpson 
River, and Dead River, Santa Rosa County, Florida are included. The 
Sepulga River main stem from Alabama County Road 42, Conecuh and 
Escambia Counties, Alabama, downstream to its confluence with the 
Conecuh River, Escambia County, Alabama, is also included. The lateral 
extent of Unit 3 is the ordinary high water line on each bank of the 
associated lakes, rivers, and shorelines.
    (ii) Maps of Unit 3 follow:
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    (7) Unit 4: Yellow River System in Santa Rosa and Okaloosa 
Counties, Florida and Covington County, Alabama.
    (i) Unit 4 includes the Yellow River main stem from Alabama State 
Highway 55, Covington County, Alabama, downstream to its discharge at 
Blackwater Bay, Santa Rosa County, Florida. All Yellow River 
distributaries (including Weaver River and Skim Lake) discharging into 
Blackwater Bay are included. The Shoal River main stem, a Yellow River 
tributary, from Florida Highway 85, Okaloosa County, Florida, to its 
confluence with the Yellow River, is included. The Blackwater River 
from its confluence with Big Coldwater Creek, Santa Rosa County, 
Florida, downstream to its discharge into Blackwater Bay is included. 
Wright Basin and Cooper Basin, Santa Rosa County, on the Blackwater 
River are included. The lateral extent of Unit 4 is the ordinary high 
water line on each bank of the associated lakes, rivers, and 
shorelines.
    (ii) Maps of Unit 4 follow:
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    (8) Unit 5: Choctawhatchee River System in Holmes, Washington, and 
Walton Counties, Florida and Dale, Coffee, Geneva, and Houston 
Counties, Alabama.
    (i) Unit 5 includes the Choctawhatchee River main stem from its 
confluence with the west and east fork of the Choctawhatchee River, 
Dale County, Alabama, downstream to its discharge at Choctawhatchee 
Bay, Walton County, Florida. The distributaries discharging into 
Choctawhatchee Bay known as Mitchell River, Indian River, Cypress 
River, and Bells Leg are included. The Boynton Cutoff, Washington 
County, Florida, which joins the Choctawhatchee River main stem, and 
Holmes Creek, Washington County, Florida, are included. The section of 
Holmes Creek from Boynton Cutoff to the mouth of Holmes Creek, 
Washington County, Florida, is included. The Pea River main stem, a 
Choctawhatchee River tributary, from the Elba Dam, Coffee County, 
Alabama, to its confluence with the Choctawhatchee River, Geneva 
County, Alabama, is included. The lateral extent of Unit 5 is the 
ordinary high water line on each bank of the associated rivers and 
shorelines.
    (ii) Maps of Unit 5 follow:
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    (9) Unit 6: Apalachicola River System in Franklin, Gulf, Liberty, 
Calhoun, Jackson, and Gadsen Counties, Florida.
    (i) Unit 6 includes the Apalachicola River mainstem, beginning from 
the Jim Woodruff Lock and Dam, Gadsden and Jackson Counties, Florida, 
downstream to its discharge at East Bay or Apalachicola Bay, Franklin 
County, Florida. All Apalachicola River distributaries, including the 
East River, Little St. Marks River, St. Marks River, Franklin County, 
Florida, to their discharge into East Bay and/or Apalachicola Bay are 
included. The entire main stem of the Brothers River, Franklin and Gulf 
Counties, Florida, a tributary of the Apalachicola River, is included. 
The lateral extent of Unit 6 is the ordinary high water line on each 
bank of the associated rivers and shorelines.
    (ii) Maps of Unit 6 follow:
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    (10) Unit 7: Suwannee River System in Hamilton, Suwannee, Madison, 
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida.
    (i) Unit 7 includes the Suwannee River main stem, beginning from 
its confluence with Long Branch Creek, Hamilton County, Florida, 
downstream to the mouth of the Suwannee River. It includes all the 
Suwannee River distributaries, including the East Pass, West Pass, 
Wadley Pass, and Alligator Pass, Dixie and Levy Counties, Florida, to 
their discharge into the Suwannee Sound or the Gulf of Mexico. The 
Withlacoochee River main stem from Florida State Road 6, Madison and 
Hamilton Counties, Florida, to its confluence with the Suwannee River 
is included. The lateral extent of Unit 7 is the ordinary high water 
line on each bank of the associated rivers and shorelines.
    (ii) Maps of Unit 7 follow:
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    (11) Unit 8: Lake Pontchartrain, Lake St. Catherine, The Rigolets, 
Little Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans, 
St. Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and 
Harrison Counties in Mississippi, and in Mobile County, Alabama.
    (i) Unit 8 encompasses Lake Pontchartrain east of the Lake 
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. 
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. 
Proposed critical habitat follows the shorelines around the perimeters 
of each included lake. The Mississippi Sound includes adjacent open 
bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy 
Bay, and barrier island passes, including Ship Island Pass, Dog Keys 
Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of 
the Mississippi Sound is the shorelines of the mainland between Heron 
Bay Point, Mississippi and Point aux Pins, Alabama. Proposed critical 
habitat excludes St. Louis Bay, north of the railroad bridge across its 
mouth; Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of 
Biloxi. The southern boundary follows along the broken shoreline of 
Lake Borgne created by low swampy islands from Malheureux Point to Isle 
au Pitre. From the northeast point of Isle au Pitre, the boundary 
continues in a straight north-northeast line to the point 1 nm (1.9 km) 
seaward of the westernmost extremity of Cat Island (30 deg.13'N, 
89 deg.10'W). The southern boundary continues 1 nm (1.9 km) offshore of 
the barrier islands and offshore of the 72 COLREGS lines at barrier 
island passes (defined at 33 CFR 80.815 (c), (d) and (e)) to the 
eastern boundary. Between Cat Island and Ship Island there is no 72 
COLREGS line. We therefore, have defined that section of the southern 
boundary as 1 nm (1.9 km) offshore of a straight line drawn from the 
southern tip of Cat Island to the western tip of Ship Island. The 
eastern boundary is the line of longitude 88 deg.18.8'W from its 
intersection with the shore (Point aux Pins) to its intersection with 
the southern boundary. The lateral extent of Unit 8 is the MHW line on 
each shoreline of the included water bodies or the entrance to rivers, 
bayous, and creeks.
    (ii) Maps of Unit 8 follow:
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    (12) Unit 9: Pensacola Bay System in Escambia and Santa Rosa 
Counties, Florida.
    (i) Unit 9 includes Pensacola Bay and its adjacent main bays and 
coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater 
Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and 
Catfish Basin. All other bays, bayous, creeks, and rivers are excluded 
at their mouths. The western boundary is the Florida State Highway 292 
Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the 
72 COLREGS line between Perdido Key and Santa Rosa Island (defined at 
33 CFR 80.810 (g)). The eastern boundary is the Florida State Highway 
399 Bridge at Gulf Breeze, Florida. The lateral extent of Unit 9 is the 
MHW line on each included bay's shoreline.
    (ii) A map of Unit 9 follows:
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    (13) Unit 10: Santa Rosa Sound in Escambia, Santa Rosa, and 
Okaloosa Counties, Florida.
    (i) Unit 10 includes the Santa Rosa Sound, bounded on the west by 
the Florida State Highway 399 bridge in Gulf Breeze, Florida. The 
eastern boundary is the U.S. Highway 98 bridge in Fort Walton Beach, 
Florida. The northern and southern boundaries of Unit 10 are formed by 
the shorelines to the MHW line or by the entrance to rivers, bayous, 
and creeks.
    (ii) A map of Unit 10 follows:
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    (14) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia, 
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties in Florida.
    (i) Unit 11 includes a portion of the Gulf of Mexico as defined by 
the following boundaries. The western boundary is the line of longitude 
87 deg.20.0' W (approximately 1 nm (1.9 km) west of Pensacola Pass) 
from its intersection with the shore to its intersection with the 
southern boundary. The northern boundary is the MHW of the mainland 
shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 
80.810 (a-g). The southern boundary is 1 nm (1.9 km) offshore of the 
northern boundary. The eastern boundary is the line of longitude 
85 deg.17.0' W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with 
the southern boundary.
    (ii) A map of Unit 11 follows:
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    (15) Unit 12: Choctawhatchee Bay in Okaloosa and Walton Counties, 
Florida.
    (i) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown 
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, 
creeks, rivers are excluded at their mouths/entrances. The western 
boundary is the U.S. Highway 98 bridge at Fort Walton Beach, Florida. 
The southern boundary is the 72 COLREGS line across East (Destin) Pass 
as defined at 33 CFR 80.810 (f). The lateral extent of Unit 12 is the 
MHW line on each shoreline of the included water bodies.
    (ii) A map of Unit 12 follows:
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    (16) Unit 13: Apalachicola Bay in Gulf and Franklin County, 
Florida.
    (i) Unit 13 includes the main body of Apalachicola Bay and its 
adjacent sounds, bays, and the nearshore waters of the Gulf of Mexico. 
These consist of St. Vincent Sound, including Indian Lagoon; 
Apalachicola Bay including Horseshoe Cove and All Tides Cove; East Bay 
including Little Bay and Big Bay; and St. George Sound, including 
Rattlesnake Cove and East Cove. Barrier Island passes (Indian Pass, 
West Pass, and East Pass) are also included. Sike's cut is excluded 
from the lighted buoys on the Gulf of Mexico side to the day boards on 
the bay side. The southern boundary includes water extending into the 
Gulf of Mexico 1 nm (1.9 km) from the MHW line of the barrier islands 
and from 72 COLREGS lines between the barrier islands (defined at 33 
CFR 80.805 (e)-(h)). The western boundary is the line of longitude 
85 deg.17.0' W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with 
the southern boundary. The eastern boundary is formed by a straight 
line drawn from the shoreline of Lanark Village at 29 deg.53.1' N, 
84 deg.35.0' W to a point that is 1 nm (1.9 km) offshore from the 
northeastern extremity of Dog Island at 29 deg.49.6' N, 84 deg.33.2' W. 
The lateral extent of Unit 13 is the MHW line on each shoreline of the 
included water bodies or the entrance of excluded rivers, bayous, and 
creeks.
    (ii) A map of Unit 13 follows:
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    (17) Unit 14: Suwannee Sound in Dixie and Levy Counties, Florida.
    (i) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf 
of Mexico waters extending 9 nm from shore (16.7 km) out to the State 
territorial water boundary. Its northern boundary is formed by a 
straight line from the northern tip of Big Pine Island (at 
approximately 29 deg.23'N, 83 deg.12'W) to the Federal-State boundary 
at 29 deg.17'N, 83 deg.21'W. The southern boundary is formed by a 
straight line from the southern tip of Richards Island (at 
approximately 83 deg.04'W, 29 deg.11'N) to the Federal-State boundary 
at 83 deg.15'W, 29 deg.04'N. The lateral extent of Unit 14 is the MHW 
line along the shorelines and the mouths of the Suwannee River (East 
and West Pass), its distributaries, and other rivers, creeks, or water 
bodies.
    (ii) A map of Unit 14 follows:
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    (18)(i) The river reaches within Units 1 to 7 proposed as critical 
habitat lie within the ordinary high water line. As defined in 33 CFR 
329.11, the ordinary high water line on non-tidal rivers is the line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas.
    (ii) The downstream limit of the riverine units is the mouth of 
each river. The mouth is defined as rkm 0 (rm 0). Although the 
interface of fresh and saltwater, referred to as the saltwater wedge, 
occurs within the lower-most reach of a river, for ease in delineating 
critical habitat units, we are defining the boundary between the 
riverine and estuarine units as rkm 0 (rm 0).
    (iii) Regulatory jurisdiction in coastal areas extends to the line 
on the shore reached by the plane of the mean (average) high water 
(MHW) (33 CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 
14 therefore, lie below the MHW lines. Where precise determination of 
the actual location becomes necessary, it must be established by survey 
with reference to the available tidal datum, preferably averaged over a 
period of 18.6 years. Less precise methods, such as observation of the 
``apparent shoreline'' which is determined by reference to physical 
markings, lines of vegetation, may be used only where an estimate is 
needed of the line reached by the mean high water.
    (iv) The term 72 COLREGS is defined as demarcation lines which 
delineate those waters upon which mariners shall comply with the 
International Regulations for Preventing Collisions at Sea, 1972 and 
those waters upon which mariners shall comply with the Inland 
Navigation Rules (33 CFR 80.01). The waters inside of these lines are 
Inland Rules waters and the waters outside the lines are COLREGS 
waters. These lines are defined in 33 CFR 80, and have been used for 
identification purposes to delineate boundary lines of the estuarine 
and marine habitat Units 8, 9, 11, and 12.
    (19) Critical habitat does not include existing developed sites 
such as dams, piers, marinas, bridges, boat ramps, exposed oil and gas 
pipelines, oil rigs, and similar structures or designated public 
swimming areas.
* * * * *

PART 226-[AMENDED]

    1. The authority citation for part 226 continues to read as 
follows:

    Authority: 16 U.S.C. 1533

    2. Section 226.214 is added to read as follows:


Sec. 226.214  Critical habitat for Gulf sturgeon.

    Gulf sturgeon is under the joint jurisdiction of the U.S. Fish and 
Wildlife Service (FWS) and NMFS. The FWS will maintain primary 
responsibility for recovery actions and NMFS will assist in and 
continue to fund recovery actions pertaining to estuarine and marine 
habitats. In riverine units, the FWS will be responsible for all 
consultations regarding Gulf sturgeon and critical habitat. In 
estuarine units, we will divide responsibility based on the action 
agency involved. The FWS will consult with the Department of 
Transportation, the Environmental Protection Agency, the Coast Guard, 
and the Federal Emergency Management Agency. NMFS will consult with the 
DOD, COE, MMS and any other Federal agencies not mentioned here 
explicitly. In marine units, NMFS will be responsible for all 
consultations regarding Gulf sturgeon and critical habitat. Any Federal 
projects that extend into the jurisdiction of both the Services will be 
consulted on by the FWS, but with NMFS assistance where needed. Each 
agency will conduct its own intra-agency consultations as necessary. 
Regulatory jurisdiction in coastal areas extends to the line on the 
shore reached by the plane of the mean (average) high water (MHW) (33 
CFR 329.12(a)(2)). All bays and estuaries within Units 8 to 14, 
therefore, lie below the MHW lines. Where precise determination of the 
actual location becomes necessary, it must be established by survey 
with reference to the available tidal datum, preferably averaged over a 
period of 18.6 years. Less precise methods, such as observation of the 
``apparent shoreline'' which is determined by reference to physical 
markings, lines of vegetation, may be used only where an estimate is 
needed of the line reached by the mean high water. The term 72 COLREGS 
is defined as demarcation lines which delineate those waters upon which 
mariners shall comply with the International Regulations for Preventing 
Collisions at Sea, 1972 and those waters upon which mariners shall 
comply with the Inland Navigation Rules (33 CFR 80.01). The waters 
inside of these lines are Inland Rules waters and the waters outside 
the lines are COLREGS waters. These lines are defined in 33 CFR part 
80, and have been used for identification purposes to delineate 
boundary lines of the estuarine and marine habitat Units 8, 9, 11, and 
12. Critical habitat does not include existing developed sites such as 
dams, piers, marinas, bridges, boat ramps, exposed oil and gas 
pipelines, oil rigs, and similar structures or designated public 
swimming areas. For a complete description of critical habitat units 
(1-14) and the constituent elements for Gulf sturgeon see 50 CFR part 
17. Units 8 through 14 described below are in estuarine and marine 
waters, where NMFS has jurisdiction.
    (a) Unit 8: Lake Pontchartrain, Lake St. Catherine, The Rigolets, 
Little Lake, Lake Borgne, and Mississippi Sound in Jefferson, Orleans, 
St. Tammany, and St. Bernard Parish, Louisiana, Hancock, Jackson, and 
Harrison Counties in MS, and in Mobile County, AL.
    (1) Unit 8 encompasses Lake Pontchartrain east of the Lake 
Pontchartrain Causeway, all of Little Lake, The Rigolets, Lake St. 
Catherine, Lake Borgne, including Heron Bay, and the Mississippi Sound. 
Proposed critical habitat follows the shorelines around the perimeters 
of each included lake. The Mississippi Sound includes adjacent open 
bays including Pascagoula Bay, Point aux Chenes Bay, Grand Bay, Sandy 
Bay, and barrier island passes, including Ship Island Pass, Dog Keys 
Pass, Horn Island Pass, and Petit Bois Pass. The northern boundary of 
the Mississippi Sound is the shorelines of the mainland between Heron 
Bay Point, MS and Point aux Pins, AL. Proposed critical habitat 
excludes St. Louis Bay, north of the railroad bridge across its mouth; 
Biloxi Bay, north of the U.S. Highway 90 bridge; and Back Bay of 
Biloxi. The southern boundary follows along the broken shoreline of 
Lake Borgne created by low swampy islands from Malheureux Point to Isle 
au Pitre. From the northeast point of Isle au Pitre, the boundary 
continues in a straight north-northeast line to the point 1 nm (1.9 km) 
seaward of the western most extremity of Cat Island (30 deg.13'N, 
89 deg.10'W). The southern boundary continues 1 nm (1.9 km) offshore of 
the barrier islands and offshore of the 72 COLREGS lines at barrier 
island passes (defined at 33 CFR 80.815 (c), (d) and (e)) to the 
eastern boundary. Between Cat Island and Ship Island there is no 72 
COLREGS line. We therefore, have defined that section of the southern 
boundary as 1 nm (1.9 km) offshore of a straight line drawn from the 
southern tip of Cat Island to the western tip of Ship Island. The 
eastern boundary is the line of longitude

[[Page 39182]]

88 deg.18.8'W from its intersection with the shore (Point aux Pins) to 
its intersection with the southern boundary. The lateral extent of Unit 
8 is the MHW line on each shoreline of the included water bodies or the 
entrance to rivers, bayous, and creeks.
    (2) Maps of Unit 8 follow:
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    (b) Unit 9: Pensacola Bay System in Escambia and Santa Rosa 
Counties, Florida.
    (1) Unit 9 includes Pensacola Bay and its adjacent main bays and 
coves. These include Big Lagoon, Escambia Bay, East Bay, Blackwater 
Bay, Bayou Grande, Macky Bay, Saultsmar Cove, Bass Hole Cove, and 
Catfish Basin. All other bays, bayous, creeks, and rivers are excluded 
at their mouths. The western boundary is the Florida State Highway 292 
Bridge crossing Big Lagoon to Perdido Key. The southern boundary is the 
72 COLREGS line between Perdido Key and Santa Rosa Island (defined at 
33 CFR 80.810 (g)). The eastern boundary is the Florida State Highway 
399 Bridge at Gulf Breeze, FL. The lateral extent of Unit 9 is the MHW 
line on each included bay's shoreline.
    (2) A map of Unit 9 follows:
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    (c) Unit 10: Santa Rosa Sound in Escambia, Santa Rosa, and Okaloosa 
Counties, FL.
    (1) Unit 10 includes the Santa Rosa Sound, bounded on the west by 
the Florida State Highway 399 bridge in Gulf Breeze, FL. The eastern 
boundary is the U.S. Highway 98 bridge in Fort Walton Beach, FL. The 
northern and southern boundaries of Unit 10 are formed by the 
shorelines to the MHW line or by the entrance to rivers, bayous, and 
creeks.
    (2) A map of Unit 10 follows:
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    (d) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia, 
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties, FL.
    (1) Unit 11 includes a portion of the Gulf of Mexico as defined by 
the following boundaries. The western boundary is the line of longitude 
87 deg.20.0' W (approximately 1 nm (1.9 km) west of Pensacola Pass) 
from its intersection with the shore to its intersection with the 
southern boundary. The northern boundary is the MHW of the mainland 
shoreline and the 72 COLREGS lines at passes as defined at 30 CFR 
80.810 (a)-(g). The southern boundary is 1 nm (1.9 km) offshore of the 
northern boundary. The eastern boundary is the line of longitude 
85 deg.17.0' W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with 
the southern boundary.
    (2) A map of Unit 11 follows:
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    (e) Unit 12: Choctawhatchee Bay in Okaloosa and Walton Counties, 
FL.
    (1) Unit 12 includes the main body of Choctawhatchee Bay, Hogtown 
Bayou, Jolly Bay, Bunker Cove, and Grassy Cove. All other bayous, 
creeks, rivers are excluded at their mouths/entrances. The western 
boundary is the U.S. Highway 98 bridge at Fort Walton Beach, FL. The 
southern boundary is the 72 COLREGS line across East (Destin) Pass as 
defined at 33 CFR 80.810 (f). The lateral extent of Unit 12 is the MHW 
line on each shoreline of the included water bodies.
    (2) A map of Unit 12 follows:
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    (f) Unit 13: Apalachicola Bay in Gulf and Franklin County, FL.
    (1) Unit 13 includes the main body of Apalachicola Bay and its 
adjacent sounds, bays, and the nearshore waters of the Gulf of Mexico. 
These consist of St. Vincent Sound, including Indian Lagoon; 
Apalachicola Bay including Horseshoe Cove and All Tides Cove; East Bay 
including Little Bay and Big Bay; and St George Sound, including 
Rattlesnake Cove and East Cove. Barrier Island passes (Indian Pass, 
West Pass, and East Pass) are also included. Sike's cut is excluded 
from the lighted buoys on the Gulf of Mexico side to the day boards on 
the bay side. The southern boundary includes water extending into the 
Gulf of Mexico 1 nm (1.9 km) from the MHW line of the barrier islands 
and from 72 COLREGS lines between the barrier islands (defined at 33 
CFR 80.805 (e)-(h)). The western boundary is the line of longitude 
85 deg.17.0' W from its intersection with the shore (near Money Bayou 
between Cape San Blas and Indian Peninsula) to its intersection with 
the southern boundary. The eastern boundary is formed by a straight 
line drawn from the shoreline of Lanark Village at 29 deg.53.1' N, 
84 deg.35.0' W to a point that is 1 nm (1.9 km) offshore from the 
northeastern extremity of Dog Island at 29 deg.49.6' N, 84 deg.33.2' W. 
The lateral extent of Unit 13 is the MHW line on each shoreline of the 
included water bodies or the entrance of excluded rivers, bayous, and 
creeks.
    (2) A map of Unit 13 follows:
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    (g) Unit 14: Suwannee Sound in Dixie and Levy Counties, FL.
    (1) Unit 14 includes Suwannee Sound and a portion of adjacent Gulf 
of Mexico waters extending 9 nm from shore (16.7 km) out to the State 
territorial water boundary. Its northern boundary is formed by a 
straight line from the northern tip of Big Pine Island (at 
approximately 29 deg.23' N, 83 deg.12' W) to the Federal-State boundary 
at 29 deg.17' N, 83 deg.21' W. The southern boundary is formed by a 
straight line from the southern tip of Richards Island (at 
approximately 83 deg.04' W, 29 deg.11' N) to the Federal-State boundary 
at 83 deg.15' W, 29 deg.04' N. The lateral extent of Unit 14 is the MHW 
line along the shorelines and the mouths of the Suwannee River (East 
and West Pass), its distributaries, and other rivers, creeks, or water 
bodies.
    (2) A map of Unit 14 follows:
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    (h) The river reaches within Units 1 to 7 proposed as critical 
habitat lie within the ordinary high water line. As defined in 33 CFR 
329.11, the ordinary high water line on non-tidal rivers is the line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas.

    Dated: May 24, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
    Dated: May 24, 2002.
John Oliver,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 02-13620 Filed 6-5-02; 8:45 am]
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