[Federal Register Volume 68, Number 53 (Wednesday, March 19, 2003)]
[Rules and Regulations]
[Pages 13370-13495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5208]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 226



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

  Federal Register / Vol. 68, No. 53 / Wednesday, March 19, 2003 / 
Rules and Regulations  

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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.; I.D. 020522126-3051-02]
RIN 0648-AQ03


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

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

ACTION: Final rule.

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SUMMARY: We, FWS and NMFS, collectively ``the Services,'' 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 designate 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 
2,783 river kilometers (rkm) (1,730 river miles (rmi)) and 6,042 square 
kilometers (km2) (2,333 square miles (mi2)) 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. Section 7(a)(2) of the Act 
requires that each Federal agency shall, in consultation with and with 
the assistance of the Services, insure that any action authorized, 
funded or carried out by such agency is not likely to jeopardize the 
continued existence of an endangered or threatened species or result in 
the destruction or adverse modification of critical habitat. Section 4 
of the Act requires us to consider economic and other relevant impacts 
of specifying any particular area as critical habitat. We solicited 
data and comments from the public on all aspects of the proposal, 
including data on economic and other impacts of the designation.

DATES: The effective date of this rule is April 18, 2003.

ADDRESSES: The complete administrative record, including comments and 
materials received, as well as supporting documentation, used in the 
preparation of this final rule are available for public inspection, by 
appointment, during normal business hours at the Panama City Field 
Office, U.S. Fish and Wildlife Service, 1601 Balboa Avenue, Panama 
City, Florida 32405. Copies of the final rule, economic analysis, and 
information regarding this critical habitat designation are available 
on the Internet at http://alabama.fws.gov/gs/.

FOR FURTHER INFORMATION CONTACT: Gail Carmody, Field Supervisor, Panama 
City Field Office (see ADDRESSES section) (telephone 850/769-0552; 
facsimile 850/763-2177), or Stephania Bolden, Fishery Biologist, 
National Oceanic and Atmospheric Administration (NOAA) Fisheries, 
Southeast Regional Office, 9721 Executive Center Drive North, St. 
Petersburg, Florida 33702 (telephone 727/570-5312; facsimile 727/570-
5517). Information regarding this designation is available in alternate 
formats upon request.

SUPPLEMENTARY INFORMATION:

Background

    The Gulf sturgeon (Acipenser oxyrinchus (=oxyrhynchus) desotoi), 
also known as the Gulf of Mexico sturgeon, is an anadromous fish 
(breeding in freshwater after migrating up rivers from marine and 
estuarine environments), 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 head ends in a hard, extended 
snout; the mouth is inferior and protrusible and is preceded by four 
conspicuous barbels. The tail (caudal fin) is distinctly asymmetrical, 
the upper lobe is longer than the lower lobe (heterocercal). Adults 
range from 1.2 to 2.4 meters (m) (4 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). King et al. (2001) have documented substantial 
divergence between A. o. oxyrinchus and A. o. desotoi using 
microsatellite DNA testing.

Distribution and Status

    Historically, the Gulf sturgeon occurred from the Mississippi River 
east 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; and 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 (Huff, 1975; and 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 
(submerged ridge or vertical wall of relatively shallow depth 
separating two bodies of water), mostly after 1950. In several rivers 
throughout the species' range, dams have severely restricted sturgeon 
access to historic migration routes and spawning areas (Boschung, 1976; 
Wooley and Crateau, 1985; and McDowall, 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 rule included 
modifications to habitat associated with dredged material disposal, 
desnagging (removal of trees and their roots), 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 (available by request or at the FWS 
Internet site, see ADDRESSES).
    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 
(Stabile et al., 1996), but we have not formally adopted management 
units at this time. For purposes of this final rule, we have used the 
term subpopulation to subdivide the Gulf sturgeon population

[[Page 13371]]

based on geography, degree of connectedness, and genetic interchange 
(Lande and Barrowclough, 1987; and King et al., 2001). Seven 
subpopulations are described in the ``Critical Habitat Unit 
Descriptions'' section of this rule.

Feeding Habits

    Gulf sturgeon feeding habits in freshwater vary depending on the 
fish's life history stage (i.e., young-of-the-year, juvenile, subadult, 
adult). Young-of-the-year Gulf sturgeon remain in freshwater feeding on 
aquatic invertebrates and detritus approximately 10 to 12 months after 
spawning occurs (Mason and Clugston, 1993; and Sulak and Clugston, 
1999). Juveniles (less than 5 kg (11 lbs) are believed to forage 
extensively and exploit scarce food resources throughout the river, 
including aquatic insects (e.g., mayflies and caddisflies), worms 
(oligochaetes), and bivalve molluscs (Huff, 1975; and Mason and 
Clugston, 1993). Juvenile (ages 1 to 6) Gulf sturgeon collected in the 
Suwannee River are trophically active (foraging) near the river mouth 
at the estuary, but trophically dormant (not foraging) in summer 
holding areas upriver--a portion of the juvenile population reside and 
feed year round near the river mouth at the estuary, not just in winter 
(K. Sulak, U.S. Geological Survey (USGS), pers. comm. 2002). In the 
Choctawhatchee River, juvenile (ages 1 to 6) Gulf sturgeon did not 
remain near the estuary at the river mouth for the entire year, 
instead, they were located during winter months in Choctawhatchee Bay 
and returned upriver to resting areas in the spring (F. Parauka, FWS, 
pers. comm. 2002). Subadult (age 6 to sexual maturity) and adult 
(sexually mature) Gulf sturgeon do not feed in freshwater (Wooley and 
Crateau, 1985; and Mason and Clugston, 1993).
    Many reports indicate that adult and subadult Gulf sturgeon lose a 
substantial percentage of their body weight while in freshwater (Wooley 
and Crateau, 1985; Mason and Clugston, 1993; and Clugston et al., 1995) 
and then compensate the loss during winter feeding in the estuarine and 
marine environments (Wooley and Crateau, 1985; and Clugston et al., 
1995). Gu et al. (2001) tested the hypothesis that subadult and adult 
Gulf sturgeon do not feed significantly during their annual residence 
in freshwater by comparing stable carbon isotope ratios of tissue 
samples from subadult and adult Suwannee River Gulf sturgeon and their 
potential freshwater and marine food sources. A large difference in 
isotope ratios between freshwater food sources and fish muscle tissue 
suggests that subadult and adult Gulf sturgeon do not feed 
significantly in freshwater. 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 subadult and adult 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 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, reproductively 
active Gulf sturgeon require additional food resources to obtain 
sufficient energy necessary for reproduction (Fox et al., 2002; and D. 
Murie and D. Parkyn, University of Florida (UF), pers. comm. 2002).
    Adult and subadult Gulf sturgeon, while in marine and estuarine 
habitat, 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 predominantly 
amphipods, lancelets, polychaetes, gastropods, shrimp, isopods, 
molluscs, and crustaceans (Huff, 1975; Mason and Clugston, 1993; Carr 
et al., 1996b; Fox et al., 2000; and Fox et al., 2002). Gulf sturgeon 
from the Suwannee River subpopulation are known to forage on 
brachiopods (Murie and Parkyn, pers. comm. 2002); however, this is not 
a documented prey item of other subpopulations. Ghost shrimp 
(Lepidophthalmus louisianensis) and the haustoriid amphipod 
(Lepidactylus spp.) are strongly suspected to be important prey for 
adult Gulf sturgeon over 1 m (3.3 ft) (Heard et al., 2000; and Fox et 
al., 2002). 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 in areas having a high 
density of 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) 
approximately one-third of 157 sturgeon guts analyzed by Carr et al. 
(1996b) contained exclusively brachiopods 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 and Greeley, 1963; Huff, 1975; and Parauka et al., 1991). 
Chapman et al. (1993) estimated that mature female Gulf sturgeon 
weighing between 29 and 51 kg (64 and 112 lb) produce an average of 
400,000 eggs. Habitat at egg collection sites consists of one or more 
of the following: limestone bluffs and outcroppings, cobble, limestone 
bedrock covered with gravel and small cobble, gravel, and sand 
(Marchant and Shutters, 1996; Sulak and Clugston, 1999; Heise et al., 
1999a; Fox et al., 2000; and Craft et al., 2001). On the Suwannee 
River, Sulak and Clugston (1999) suggest a dense matrix of gravel or 
cobble is likely essential for Gulf sturgeon egg adhesion and the 
sheltering of the yolk sac larvae, and is a habitat spawning adults 
apparently select. 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 (MMNS), pers. comm. 2002; and F. Parauka, 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 18.2 to 23.9 degrees Celsius 
([deg]C) (64.8 to 75.0 degrees Fahrenheit ([deg]F)) (Fox et al., 2000; 
Ross et al., 2000; Craft et al., 2001). 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). Researchers hypothesize that spawning must take place 
where the hydrological and chemical settings are appropriate for gamete 
(mature reproductive cell) function, and temperature, pH, and dissolved 
oxygen conditions are stable and appropriate for embryonic and yolk sac 
larval development (Sulak and Clugston, 1999).
    Sulak and Clugston (1999) suggested that sturgeon spawning activity 
in the Suwannee River is related to the phase

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of the moon, but only after the water temperature has risen to 17 
[deg]C (62.6 [deg]F). Other researchers however, have found little 
evidence of spawning associated with lunar cycles (Slack et al., 1999; 
and Fox et al., 2000). 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. (2002) found no clear 
pattern between timing of Gulf sturgeon entering the river and flow 
patterns on the Choctawhatchee River. Ross et al. (2001b) surmised that 
the high flows in early March were a cue for sturgeon to begin their 
upstream movement in the Pascagoula River.
    Atlantic sturgeon (A. oxyrinchus) 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 spawning periodicity, as male Gulf 
sturgeon are capable of annual spawning, and females require more than 
one year between spawning events (Huff, 1975; and Fox et al., 2000).

Freshwater Habitat

    In the spring (March to May), most 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 
freshwater (Odenkirk, 1989; Foster, 1993; Clugston et al., 1995; and 
Fox et al., 2000). Fox et al. (2000) found that some individuals of the 
Choctawhatchee River subpopulation do not enter the river until the 
summer months. Gulf sturgeon migration is further discussed in the 
``Migration'' section of this rule. 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-the-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. Given that the river is generally 
nutrient poor with low levels of total phosphorus and organic carbon, 
suggesting low productivity, this dispersal may be an adaptation to 
exploit 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, some adult 
and subadult Gulf sturgeon remain near the spawning grounds throughout 
the summer months (Wooley and Crateau, 1985; and Ross et al., 2001b), 
but the majority move downstream to areas referred to as summer resting 
or holding areas. In other rivers, most Gulf sturgeon spawn and move 
downstream to aggregation areas also referred to as summer resting or 
holding areas. A few Gulf sturgeon have been documented remaining at or 
near their spawning grounds throughout the winter (Wooley and Crateau, 
1985; Slack et al., 1999; and Heise et al., 1999a). 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 (Hightower et al., in press). Often, these resting 
areas are located in close proximity to natural springs throughout the 
warmest months of the year, but are not located within a spring or 
thermal plume emanating from a spring (Clugston et al., 1995; Foster 
and Clugston, 1997; and Hightower et al., in press). 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; and Hightower et al., in press). The substrates consisted of 
mixtures of limestone and sand (Clugston et al., 1995), sand and gravel 
(Wooley and Crateau, 1985; and 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; and Ross et 
al., 2001b). 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 indicates 
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) (K. Sulak, 
USGS, pers. comm. cited in Wakeford, 2001). If the flow is too strong, 
eggs might not be able to settle on and adhere to suitable substrate 
(Wooley and Crateau et al., 1985). Flows that are too low can cause 
clumping of eggs, which leads to increased mortality from asphyxiation 
and fungal infection (Wooley and Crateau et al., 1985). Flow velocity 
requirements for age 0 sturgeon may vary depending on substrate type. 
Chan et al. (1997) found that age 0 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 used a 
variety of substrates (sand, gravel, and cobble).
    Gulf sturgeon require large areas of diverse habitat that have 
natural variations in water flow, velocity, temperature, and turbidity 
(FWS et al., 1995; and Wakeford, 2001). Natural surface and groundwater 
discharges influence a river's characteristic fluctuations in volume, 
depth, and velocity (Leitman et al., 1993; and Albertson and Torak, 
2002). Change in temperature is thought to be an important factor in 
initiating sturgeon migration (Wooley and Crateau, 1985; Chapman and 
Carr, 1995; and Foster and Clugston, 1997) (see ``Migration'' section 
for temperature ranges). Laboratory experiments indicate 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; and 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). 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 information 
gained from these laboratory experiments on hatchery-reared sturgeon to 
develop detailed information on water flow requirements of wild 
sturgeon throughout different phases of their freshwater residence 
(Wakeford, 2001).

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Estuarine and Marine Habitat

    Most 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; 
and Fox et al., 2002). 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 the remaining 9 percent overwintered in the Gulf of 
Mexico (FWS, 1998). Adult Gulf sturgeon are more likely to overwinter 
in the Gulf of Mexico, with 45 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, 1998; and Fox et al., 2002). 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; and Edwards et al., in prep.).
    Research in Choctawhatchee Bay indicates that subadult Gulf 
sturgeon show a preference for sandy shoreline habitats with water 
depths less than 3.5 m (11.5 ft) and salinity less than 6.3 parts per 
thousand (Parauka et al., in press). Fox and Hightower (1998) found 
that adult Gulf sturgeon monitored in Choctawhatchee Bay use some of 
the same habitats as subadults. The majority of tagged fish have been 
located in areas lacking seagrass (Fox et al., 2002; and Parauka et 
al., in press).
    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 (Menzel, 1971; Abele and Kim, 1986; American 
Fisheries Society, 1989; and M. Brim, FWS, pers. comm. 2002).
    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 of Mexico nearshore (less than 1.6 km (1 mi)) unconsolidated, 
fine-medium grain sand habitats, including natural inlets and passes 
from the Gulf to estuaries, support crustaceans such as mole crabs, 
sand fleas, various amphipod species, and lancelets (Menzel, 1971; 
Abele and Kim, 1986; American Fisheries Society, 1989; and Brim, pers. 
comm. 2002).
    Estuary and bay unvegetated habitats have a preponderance of sandy 
substrates that support burrowing crustaceans, such as ghost shrimp, 
small crabs, various polychaete worms, and small bivalve mollusks 
(Menzel, 1971; Abele and Kim, 1986; American Fisheries Society, 1989; 
and Brim, pers. comm. 2002). Gulf sturgeon are often located in these 
areas, and because their known prey items are present, it is assumed 
that Gulf sturgeon are foraging.

Migration

    Migratory behavior of the Gulf sturgeon seems influenced by sex, 
reproductive status, water temperature, and possibly river flow. Carr 
et al. (1996b) reported that male Gulf sturgeon initiate migration to 
the river earlier in spring than females. Fox et al. (2000) found no 
significant difference in the timing of river entry due to sex, but 
reported that males migrate further upstream than females and that ripe 
(in reproductive condition) males and females enter the river earlier 
than nonripe fish (Fox et al., 2000). Most adults and subadults begin 
moving from estuarine and marine waters into the coastal rivers in 
early spring (i.e., March through May) when river water temperatures 
range from 16.0 to 23.0 [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; and Fox et al., 2000), while others may enter the rivers during 
summer months (Fox et al., 2000). Some research supports the theory 
that spring migration coincides with the general period of spring high 
water (Chapman and Carr, 1995; Sulak and Clugston, 1999; and Ross et 
al., 2001b), however, observations on the Choctawhatchee River have not 
found a clear relationship between the timing of river entrance and 
flow patterns (Fox et al., 2002).
    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; and 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., 2002) as sturgeon develop an 
active mechanism for osmoregulation and ionic balance by age one 
(Altinok et al., 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; and 
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) described sturgeon (Acipenseridae) as exhibiting 
evolutionary traits adapted for benthic cruising. Tracking observations 
by Sulak and Clugston (1999), Fox et al. (2002), and Edwards et al. (in 
prep.) 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., 2002). 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 resultant genetic 
interchange among subpopulations. 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 (inter-river migrations that facilitate maintenance of the 
natural hierarchy of between river genetic variability).
    When temperature drops occur that are associated with major cold 
fronts, researchers of the Escambia, Yellow, and Suwannee Rivers 
subpopulations have been unable to locate adult Gulf sturgeon within 
the bays (Craft et al., 2001; and Edwards et al., in prep.). They 
hypothesize that the drop in water temperatures associated with cold 
fronts disperses sturgeon to more distant foraging grounds. It is 
currently

[[Page 13374]]

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) described two hypotheses regarding areas 
adult Gulf sturgeon may overwinter in the Gulf of Mexico in order 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 or areas. 
Telemetry data document that 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, with relocation 
of tagged individuals greatest in the passes between islands (Ross et 
al., 2001a; and Rogillio et al., 2002). 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 (Fox et al., 2002; and F. Parauka, 
pers. comm. 2002). Telemetry data in the Gulf of Mexico usually locate 
sturgeon in depths of 6 m (19.8 ft) or less (Ross et al., 2001a; Fox et 
al., 2002; Rogillio et al., 2002; and F. Parauka, pers. comm. 2002).

River-Specific Fidelity

    Stabile et al. (1996) analyzed tissue from Gulf sturgeon in 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 (Carr, 1983). From 1981 to 1993, 4,100 fish were tagged 
in the Apalachicola and Suwannee Rivers. Of these, 868 total fish were 
recaptured (FWS et al. 1995). Of the recaptured fish, 860 fish (99 
percent) were recaptured in the river of their initial collection. 
Eight fish moved between river systems and represented less than 1 
percent (0.009) of the 868 total fish recaptured (FWS et al., 1995). We 
have no information documenting spawning adults in non-natal rivers. 
Foster and Clugston (1997) noted that telemetered Gulf sturgeon in the 
Suwannee River returned to the same areas as the previous summer, and 
suggested that chemical cuing may influence distribution.
    To date, biologists have documented a total of 22 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); Apalachicola River to Deer Point Lake (North Bay of the St. 
Andrew Bay system), one fish (Wooley and Crateau, 1985); Suwannee River 
to Apalachicola River, three sturgeon (Carr et al., 1996b; and F. 
Parauka, pers. comm. 2002); Choctawhatchee River to Apalachicola River, 
one sturgeon (F. Parauka, pers. comm. 2002); Yellow River to 
Choctawhatchee River, three female sturgeon (two adult, one subadult) 
(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., 
2002); Choctawhatchee River to Escambia, one female sturgeon (Fox et 
al., 2002); 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) noted that observed straying rates 
between rivers were not the same as actual gene flow rates, i.e., 
inter-stock movement does not equate to interstock reproduction. The 
gene flow is low in Gulf sturgeon stocks, with each stock exchanging 
less than one mature female per generation (Waldman and Wirgin, 1998).

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.
    Section 4(a)(3)(A) of the Act requires that critical habitat be 
designated concurrently with a determination that a species is 
endangered or threatened, to the maximum extent prudent and 
determinable. When such a designation is not determinable at the time 
of final listing of a species, or if a prompt determination of 
endangered or threatened status is essential to the conservation of the 
species, section 4(b)(6)(C) of the Act provides for an additional year 
to promulgate a final critical habitat designation. In the final rule 
listing Gulf sturgeon as a threatened species, we found that a critical 
habitat designation may be prudent but was not 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

[[Page 13375]]

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 5th Circuit reversed the decision of the 
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 submit the proposed 
decision to the Federal Register on or by May 23, 2002, and the final 
decision on or by February 28, 2003.
    On June 6, 2002, we published a proposed rule in the Federal 
Register in which we announced our determination that designation of 
critical habitat was prudent, proposed designation of critical habitat 
for Gulf sturgeon, announced four public meetings and hearings, and 
requested comments on the proposal by September 23, 2002 (67 FR 39106). 
On August 8, 2002, we published a notice in the Federal Register (67 FR 
51530) announcing the availability of the draft economic analysis and 
the extension of the comment period through October 7, 2002. We also 
corrected the address of a public hearing to be held in Defuniak 
Springs, FL on August 20, 2002. We held public meetings and public 
hearings on the proposed rule and draft economic analysis at four 
locations: Live Oak, Florida, on August 19, 2002; Defuniak Springs, 
Florida, on August 20, 2002; Biloxi, Mississippi, on August 21, 2002; 
and Kenner, Louisiana, on August 22, 2002.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposal to designate critical habitat for the Gulf 
sturgeon. In addition, we published newspaper notices inviting public 
comment on the proposed rule and the draft economic analysis, and 
announced the public meetings and hearings in the following newspapers: 
St. Petersburg Times, Pensacola News Journal, Panama City The News 
Herald, Fort Walton Daily News, Crystal River Citrus County Chronicle, 
Tallahassee Democrat, and The Gainesville Sun, in Florida; The Brewton 
Standard, Dothan Eagle, Geneva County Reaper, and Mobile Register, in 
Alabama; Hinds County The Clarion-Ledger and Gulfport's The Sun Herald, 
in Mississippi; and New Orleans The Times-Picayune and Baton Rouge's 
The Advocate in Louisiana.
    We held four public meetings and four public hearings on the 
proposed rule (see ``Previous Federal Action'' section for dates and 
locations). Transcripts of these hearings are available for inspection 
(see ADDRESSES).
    We received written letters or e-mails from a total of 126 parties 
which included 2 congressional representatives from Georgia, 10 Federal 
agencies, 13 State agencies, 5 county governments, 93 groups or 
individuals, and 3 peer reviewers. Of the 128 total responses, 29 
supported the proposed rule, 2 opposed it, and the rest were neutral.
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from six knowledgeable 
individuals having expertise either with the species, with the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. Three of these experts provided a 
written response generally supporting the designation and provided 
additional information that we have incorporated into the rule as 
appropriate. We appreciate the responses of these peer reviewers, and 
believe their input has improved the content of this rule.
    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and Gulf sturgeon. Some comments 
resulted in changes between the proposed and final designations, and 
those comments are discussed in the ``Summary of Changes From the 
Proposed Rule'' section of this document. Written comments and oral 
statements presented at the public hearings and received during the 
comment period are addressed in the following summary. For readers' 
convenience we have assigned comments to major issue categories. We 
have combined similar comments into single comments and responses.

Peer Review Comments

    Comment 1: Three peer reviewers recommended that additional areas 
be included as critical habitat, sometimes stating that the areas 
contain the primary constituent elements upon which Gulf sturgeon rely. 
Others requested inclusion based on historic use or potential use by 
the Gulf sturgeon in these areas. The areas requested for inclusion 
were St. Joseph Bay in Florida, the western portion of Lake 
Pontchartrain and all of Lake Maurepas in Louisiana, and the Strong 
River in Mississippi.
    Also, twenty eight commenters recommended that additional areas be 
included as critical habitat, with some stating that the areas contain 
the primary constituent elements. Others requested inclusion based on 
historic use or potential use by the Gulf sturgeon in these areas. 
Other commenters expressed concerns that the proposed designation did 
not include all of the current range of the Gulf sturgeon. The areas 
requested for inclusion were the Ochlockonee River, Withlacoochee

[[Page 13376]]

River (central Florida river, not the tributary of the Suwannee River), 
West Bay, East Bay of St. Andrew Bay system, St. Andrew Bay, St. Joseph 
Bay, Tampa Bay, and the Hillsborough River in Florida; an additional 
Choctawhatchee River reach, Mobile Bay, Murder Creek (tributary of the 
Conecuh River), Alabama River, Bayou La Batre, and Perdido Bay in 
Mobile Bay, in Alabama; Strong River in Mississippi; the western 
portion of Lake Pontchartrain, Tickfaw River, Tchefuncte River, Lake 
Maurepas, Chandeleur Sound, in Louisiana; and the coastline from 
Mississippi to Tampa Bay, Florida.
    Our Response: Section 4(b)(2) of the Act directs us to designate 
critical habitat on the basis of the best scientific data available. 
However, no or insufficient data were provided to us to support 
inclusion of any of the above areas as critical habitat. While many of 
these areas may have historically supported Gulf sturgeon populations 
and/or may currently support populations, we cannot document that they 
are essential to the conservation of the Gulf sturgeon.
    The definition of critical habitat in section 3(5)(A) of the Act 
includes ``(I) 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) which 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.'' By definition, essential critical 
habitat generally describes a subset of the area potentially containing 
primary constituent elements for a species. As discussed in the methods 
section of the proposed and this final rule, to determine areas 
essential for the conservation of the Gulf sturgeon, we used the best 
scientific data available pertaining to known habitat requirements of 
the species. Areas designated as critical habitat for the Gulf sturgeon 
are within the current known range of the species and contain one or 
more primary constituent elements essential for the conservation of the 
species. In our proposed and final designation of critical habitat, we 
selected essential habitat areas that currently contain populations or 
provide habitat components essential to the conservation of the 
species. During this analysis, it was determined that some areas 
containing one or more primary constituent elements did not represent 
suitable habitat or were otherwise not essential to the conservation of 
the species.
    Comment 2: One peer reviewer stated that the designation of 
critical habitat for the Chickasawhay River (Unit 2) should be expanded 
upstream to the beginning of the Chickasawhay River starting at the 
confluence of the Chunky and Okatibbee Rivers, north of Enterprise 
(Clarke County, Mississippi). This area contains the primary 
constituent elements as noted in the proposed rule, including potential 
spawning habitat. Research efforts conducted during spring 2002 by the 
University of Southern Mississippi (USM)-MMNS Gulf sturgeon research 
group documented the most upstream movement of a radio-tagged 
individual on the Chickasawhay River traveling as far upstream as the 
confluence of the Chunky and Okatibbee rivers. This individual was 
originally tagged at the mouth of the Pascagoula River during early-
March 2002.
    Our Response: The area requested for inclusion would add 19 rkm (12 
rmi) to the designation on the Chickasawhay River in Mississippi. 
However, we believe that what we proposed for the Gulf sturgeon 
including the portion of the Chickasawhay River proposed for 
designation, includes sufficient habitat to conserve the species. 
Accordingly, we have not made the requested change. Moreover, areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibitions.
    Comment 3: One peer reviewer questioned whether all Gulf sturgeon 
overwinter in the marine and estuarine environment and what the 
potential impacts on the population would be if critical habitat had a 
temporal component to its designation.
    Our Response: A few Gulf sturgeon have been documented remaining at 
or near their spawning grounds throughout the winter (Wooley and 
Crateau, 1985; Slack et al., 1999; and Heise et al,. 1999a). However, 
this is an exception to the normal behavior of adult Gulf sturgeon. 
During winter months, juveniles often remain in the estuary near the 
river mouth, but adult and sub-adults leave the riverine habitat to 
forage in the estuarine and marine areas. Critical habitat has no 
temporal boundaries, only spatial. If an area is designated as critical 
habitat, it receives equal protection throughout the year regardless of 
the presence or absence of the species.
    Comment 4: One peer reviewer and one commenter questioned our 
rationale for deriving seven subpopulations from the five that were 
proposed by Stabile et al. (1996).
    Our Response: 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 designated to ensure conservation of 
the species. We considered several factors in this evaluation: (1) 
Maintaining overall genetic integrity and natural rates of inter-river 
genetic exchange, thereby minimizing the potential for inbreeding, (2) 
retaining potentially important selective pressure 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 
essential to the conservation of the species.
    In their analysis of Gulf sturgeon subpopulations from eight 
drainages along the Gulf of Mexico for genetic diversity, 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.
    All five genetic stocks are represented by the seven subpopulations 
occupying the critical habitat units. The number, distribution, and 
range of the seven Gulf sturgeon subpopulations included in these units 
are necessary to protect and support the extent and diversity of the 
species' genetic integrity and can provide a rescue effect, if needed 
(see ``Methods'' section). 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.
    Comment 5: Four commenters, including one peer reviewer, noted that 
the western boundary in Lake Pontchartrain (Unit 8) seemed arbitrary.
    Response: Critical habitat areas in Unit 8 provide juvenile, 
subadult and adult feeding, resting and passage habitat for Gulf 
sturgeon from the Pascagoula and Pearl Rivers subpopulations. Lake 
Pontchartrain is divided into eastern and western areas by the Lake 
Pontchartrain Causeway (a twin highway bridge supported by pilings 
extending 33.6 km (20.9 mi) from the north to the south). Gulf

[[Page 13377]]

sturgeon from the Pearl River subpopulation have been documented (by 
tags) to use the eastern half of Lake Pontchartrain. Researchers 
believe that the eastern portion of the lake provides important winter 
habitat for juveniles and subadults, and they have located tagged 
individuals in Lake Pontchartrain and have repeatedly caught untagged 
sturgeon between Goose Point and Point Platte, an area believed to be 
used for winter feeding. While Gulf sturgeon have been documented in 
the western portion of the Lake (generally near the mouth of small 
rivers), it is not known whether those sturgeon are part of the Pearl 
and Bogue Chitto Rivers spawning subpopulation, or if they are part of 
a smaller spawning subpopulation that might exist within the Tickfaw, 
Tangipahoa, or Tchefuncte Rivers. We, therefore, conclude that the 
eastern portion, but not the western portion, of Lake Pontchartrain 
provides essential winter habitat for the Pearl River subpopulation, as 
data supports inclusion of the eastern portion of Lake Pontchartrain as 
critical habitat. Although the Lake Pontchartrain Causeway does not 
restrict fish movement, it does provide an appropriate and easily 
identifiable boundary.

Public Comments

Issue A: General Biological Comments
    Comment 6: One commenter believes that forestry practices (e.g., 
the use of silvicultural Best Management Practices and application of 
streamside management zones, to protect surface water quality during 
forestry operations) actively contribute to the conservation of the 
Gulf sturgeon by providing an important incentive for private 
landowners to retain forested riverine corridors adjacent to sturgeon 
habitat.
    Our Response: We agree that Best Management Practices when applied 
correctly to silvicultural activities do protect and improve the 
quality of surface waters and, therefore, do contribute to the 
conservation of the Gulf sturgeon.
    Comment 7: Some commenters questioned the basis of our statement 
that adult Gulf sturgeon do not feed while in freshwater.
    Our Response: As stated in the proposed and final rules (see 
``Feeding Habits'' section), many reports indicate that subadult and 
adult Gulf sturgeon fast and lose between 4 and 15 percent of their 
total body weight while in freshwater, and then compensate the loss 
during winter feeding in estuarine and marine environments (Carr, 1983; 
Wooley and Crateau, 1985; Clugston et al,. 1995; Morrow et al., 1998a; 
Heise et al, 1999a; Sulak and Clugston, 1999; and Ross et al., 2000). 
Gu et al. (2001) tested the hypothesis that subadult and adult Gulf 
sturgeon do not feed significantly during their annual residence in 
freshwater by comparing stable carbon isotope ratios of tissue samples 
from subadult and adult Gulf sturgeon and their potential freshwater 
and marine food sources. A large difference in isotope ratios between 
freshwater food sources and fish muscle tissue suggests that subadult 
and adult Gulf sturgeon do not feed significantly in freshwater. The 
isotope similarity between subadult and adult 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).
    Comment 8: One commenter questioned whether fish tagging studies 
were limited to adults or whether they included other life stages as 
well.
    Our Response: Juveniles (age 1 to 6 years), subadults (age 6 years 
to sexual maturity), and adults (sexually mature) have been marked with 
different types of equipment, but primarily with T-bar tags (external) 
and passive integrated transponder (PIT) tags (internal). Young-of-the-
year less than 20 cm (7.8 inches) tail length are too small to tag with 
the standard markers and therefore are exclusively pit tagged (Mike 
Randall, USGS, pers. comm. 2002).
    Comment 9: Four commenters had questions regarding Gulf sturgeon 
prey items and foraging areas.
    Our Response: As stated in the proposed rule (67 FR 39107), the 
diet of the Gulf sturgeon depends on its life history stage. While 
adults are not known to forage in freshwater, juveniles and young-of-
the-year do. We have used data from stomach content analysis and 
telemetry studies to identify probable Gulf sturgeon foraging areas, 
i.e., those areas with substrate that supports the known prey items, 
coupled with tracking data indicating sturgeon presence. We relied on 
two observations to conclude that subadult and adult Gulf sturgeon do 
not forage in freshwater: (1) Gulf sturgeon lose a substantial 
percentage of their body weight while in freshwater in summer and then 
compensate for the loss during winter, and (2) stable isotopes from 
sturgeon muscle tissue and their potential marine food sources are 
similar, while there is a large difference between muscle tissue and 
potential freshwater food sources. Gulf sturgeon researchers and the 
Services are certain that the existing data support these conclusions 
regarding Gulf sturgeon food items and foraging locations.
    Comment 10: Commenters wondered what we know of Gulf sturgeon's 
overall use of estuarine and marine waters.
    Our Response: While research indicates that Gulf sturgeon utilize 
estuarine and marine areas for staging, resting and foraging, 
researchers continue to investigate Gulf sturgeon over-wintering 
behavior and locale. We are not able, at this time, to readily discern 
the Gulf sturgeon's overall utilization of marine and estuarine areas 
and we look forward to evaluating additional information when it 
becomes available.
    Comment 11: Some commenters questioned whether we were 
knowledgeable of Gulf sturgeon migration routes.
    Our Response: We have identified and described Gulf sturgeon 
spawning migrations from coastal/marine areas to the rivers; however, 
inter-riverine migratory patterns are not well understood. When we 
could identify inter-riverine movements (mostly from telemetry data), 
we included appropriate inshore coastal waters in the critical habitat 
designation to provide protection for migrating sturgeon (e.g., Unit 
11). Research is ongoing to investigate Gulf sturgeon inter-riverine 
migrations (e.g., recording broad movement patterns via satellite 
tags), and researchers are presently collating data to analyze Gulf-
wide movements.
Issue B: Site-specific Biological Comments
    Comment 12: One commenter questioned whether any areas south of the 
Suwannee River in Florida were historic critical habitat for Gulf 
sturgeon.
    Our Response: Since this is the first critical habitat designation 
for the Gulf sturgeon, we presume that the commenter is asking whether 
areas south of the Suwannee River were of importance to the Gulf 
sturgeon historically. There are few reported sightings of Gulf 
sturgeon using rivers south of the Suwannee River, but there are 
historic and recent records of Gulf sturgeon in Tampa Bay and Charlotte 
Harbor. At one time, the Tampa Bay area produced large commercial 
landings of Gulf sturgeon. There have been reported Gulf sturgeon 
sightings in the Florida Keys during winter months. Some biologists 
theorize that the Suwannee River population of Gulf sturgeon may winter 
in the Tampa Bay and Charlotte Harbor areas; however, further research 
is needed in this area.

[[Page 13378]]

    Comment 13: Two commenters asked how we determined the upstream 
limit on the Suwannee River, and one commenter stated that the 
published literature does not report the use of the Suwannee River 
upstream of 230 rkm (143 rmi).
    Our Response: We received unpublished information from Gulf 
sturgeon experts (Ken Sulak, USGS, pers. comm. 2002; Jim Clugston, 
retired USGS, pers. comm. 2002) of sightings of young-of-the-year Gulf 
sturgeon as far upstream on the Suwannee River as to the confluence 
with Roaring Creek at 304 rkm (200 rmi). This is approximately 11 rkm 
(18 rmi) upstream of the designated critical habitat, which stops at 
293 rkm (182 rmi). We believe that the area known as Big Shoals on the 
Suwannee River captures the upstream-most significant spawning areas 
and, therefore, we included upstream to this point. We have included 
the 0.31 rkm (0.50 rmi) of habitat upstream from Big Shoals to the 
confluence with Long Branch for ease of identification. It is correct 
that the published literature on the Suwannee River documents spawning 
sites no further upstream than at 230 rkm (143 rmi), but we have relied 
on the above unpublished literature from reliable sources to determine 
the upstream limit on this system.
    Comment 14: Two commenters requested that the Services omit areas 
adjacent to military lands from the designation under the Act's section 
4(b)(2). The rationale presented included proximity to a military base 
that is used for military testing and training, restricting military's 
ability to quickly respond to training and testing due to long-lead 
time administrative considerations required for consultations, and 
reducing the number of formal consultations performed by the Services.
    Our Response: The Department of Defense (DOD) did not request that 
areas adjacent to military lands be excluded from critical habitat 
designation. In any case, we have no data indicating that these areas 
should be excluded. We have been successfully and efficiently 
conducting section 7 consultations with military bases in these 
critical habitat areas for over 10 years, and we intend to continue 
working as partners with the armed forces to uphold the Act without 
compromising national security. We do not foresee any impacts to 
military readiness as a result of the adjacent critical habitat 
designation.
    Comment 15: One commenter reported that unusually large fish have 
been taken from a fish trap on the Tennessee River near the mouth of 
Chickamauga Creek, above Chattanooga, Tennessee.
    Our Response: Historic information indicates that Gulf sturgeon did 
not venture as far inland as Tennessee, so we are fairly certain the 
large fish captured in the fish traps were not Gulf sturgeon. These 
fish may have been lake sturgeon (A. fulvescens) or shovelnose sturgeon 
(Scaphirhynchus platorhynchus), although these species are uncommon, 
particularly in east Tennessee. Paddlefish (Polyodon spathula), which 
attain weights of over 45 kg (100 lb) are found in the Tennessee River; 
however, additional information would be necessary to clearly identify 
the species involved and none was provided by the commenter.
Issue C: National Environmental Policy Act (NEPA) Compliance
    Comment 16: One commenter stated that the Services should withdraw 
the proposed rule pending compliance with NEPA, through preparation of 
an environmental assessment or an environmental impact statement (EIS). 
The commenter stated that FWS's position that NEPA only applies to 
critical habitat designations in the 10th Circuit, based upon that 
circuit's 1996 decision in Catron County Bd. of Comm. v. USFWS, 75 F.3d 
1429, is unlawful. The commenter stated that the two exceptions to NEPA 
compliance identified by the 10th Circuit (i.e., unavoidable conflict 
between NEPA and another statute or duplicative procedures provided by 
NEPA and a second statute) are not present in the case of critical 
habitat designation. The commenter stated that the proposed critical 
habitat rule was subject to NEPA because the effects of the designation 
are broader than protecting habitat. They believe that future Federal 
actions that are likely to adversely affect critical habitat will be 
prohibited. They also believe that an environmental assessment may 
reveal a more effective alternative to preventing extinction of the 
sturgeon than designating critical habitat.
    Our Response: The Services believe that in Douglas Co. v. Babbitt, 
48 F.3d 1495 (9th Cir. 1995), the Court correctly interpreted the 
relationship between NEPA and critical habitat designation under the 
Act. The Ninth Circuit Court rejected the suggestion, identical to that 
raised by the commenter, that irreconcilable statutory conflict or 
duplicative statutory procedures are the only exceptions to application 
of NEPA to Federal actions. The Court held that the legislative history 
of the Act demonstrated that Congress intended to displace NEPA 
procedures with carefully crafted procedures specific to critical 
habitat designation. Further, the Douglas County Court held that the 
critical habitat mandate of the Act conflicts with NEPA in that, 
although the Secretary may exclude areas from critical habitat if such 
exclusion would be more beneficial than harmful, the Secretary has no 
discretion but to include areas in the designation if exclusion of such 
areas would result in extinction. This lack of discretion renders 
application of NEPA procedures (e.g., consideration of broad 
environmental impacts, alternatives analysis) superfluous (this lack of 
discretion to consider broad environmental impacts was the basis for 
the 6th Circuit's determination that NEPA does not apply to listing 
decisions under the Act, in Pacific Legal Foundation v. Andrus, 657 F2d 
829 (6th Cir. 1981)). The Court noted that the Act also conflicts with 
NEPA's demand for impact analysis, in that the Act dictates that the 
Secretary ``shall'' designate critical habitat for listed species based 
upon an evaluation of economic and other ``relevant'' impacts, which 
the Court interpreted as narrower than NEPA's directive. Finally, the 
9th Circuit, based upon a review of precedent from several circuits 
including the 5th Circuit, held that an EIS is not required for actions 
that do not change the physical environment.
    In addition, we note that Federal actions that might adversely 
affect critical habitat are not necessarily prohibited. Many Federal 
actions may adversely affect critical habitat without the effect rising 
to the level of destruction or adverse modification of the critical 
habitat. In those cases where we find that a Federal project would 
destroy or adversely modify critical habitat, we must identify 
reasonable and prudent alternatives (RPAs) to the project that would 
avoid the destruction or adverse modification (see ``Effects of 
Critical Habitat Designation'' section). The RPAs must be capable of 
being implemented in a manner consistent with the intended purpose of 
the action, be consistent with the action agency's legal authority and 
jurisdiction, and be economically and technically feasible.
Issue D: Section 7 Consultation Issues
    Comment 17: One commenter expressed concerns that the critical 
habitat designation will make it more difficult for fisheries managers 
to sample for non-endangered fish in these rivers and fears they will 
be required to apply for permits and provide annual reports, and that 
in some cases, fishery activities may be stopped due to

[[Page 13379]]

sampling being conducted in areas designated as critical habitat.
    Our Response: The Gulf sturgeon is a listed species and thereby 
protected under the Act regardless of whether or not critical habitat 
has been designated, therefore permits and annual reporting may be 
necessary if the activities being conducted for fisheries management 
may result in the incidental take of a Gulf sturgeon. Given that the 
fish has been federally protected for 10 years and fisheries management 
in all states throughout the Gulf sturgeon's range has proceeded 
unhampered, we are unclear as to the reasons for this concern. Critical 
habitat designation may result in required project modifications only 
for activities with a Federal nexus and then only if the activity were 
to destroy or adversely modify the primary constituent elements 
contained in the designated habitat (i.e., prey, spawning habitat, 
water quality, water quantity, sediment quality, or migratory passage).
    Comment 18: One commenter questioned whether water quality issues 
may arise from the establishment of the critical habitat and another 
requested that the existing government databases be updated to reflect 
current water quality of southern rivers, since water quality has 
improved subsequent to the historic decline of the species.
    Our Response: As required under section 7 of the Act, the 
Environmental Protection Agency (EPA) consults with us regarding water 
quality standards to ensure that they are protective of endangered and 
threatened species. The EPA anticipates consulting with us every three 
years as part of its triennial review of State delegated water quality 
standards for Alabama, Florida, Mississippi, and Louisiana under 
section 303(d) of the Clean Water Act. During each review period all 
data relative to Gulf sturgeon and water quality will be updated and 
reviewed to ensure that the standards continue to be protective. The 
EPA recently released a new database on the water quality of the 
nation's rivers. This information is available on its web site 
(www.epa.gov). Future consultations will consider impacts to Gulf 
sturgeon and associated critical habitat, and will take changes in 
water quality into account.
    Comment 19: One commenter questioned whether the FWS provided 
information on flow requirements needed for critical habitat in the 
Apalachicola, Chattahoochee, and Flint Rivers (ACF) negotiations and 
whether such information was available to the public.
    Our Response: The FWS presented information about the hydrological 
characteristics of potential sturgeon spawning habitat on the 
Apalachicola River as a result of separate requests from the Georgia 
and Florida negotiators to the ACF Compact. This information is 
summarized in our response to comment 42. Our information was based on 
a single set of measurements at one potential spawning site, and for 
reasons summarized in our response to comment 41, we do not 
characterize this information as ``flow requirements needed for 
critical habitat.'' This information is available to the public upon 
request. However, the U.S. Army Corps of Engineers (USACE) is 
conducting more detailed surveys intended to augment and refine our 
initial measurements and will use these new measurements in preparing 
its biological assessment of the effects of Federal reservoir 
operations on federally-protected species and their habitats.
    Comment 20: One commenter requested that the Services withdraw 
their proposed critical habitat designation for the Gulf sturgeon and 
instead address any needs of the species in the context of the ongoing 
ACF Compact process.
    Our Response: The ACF Compact is a Federal law that authorizes, 
among other things, the States of Alabama, Florida, and Georgia, but 
not the Federal government, to negotiate a water allocation formula for 
equitably apportioning the surface waters of the ACF Basin. Under the 
leadership of the non-voting Federal Commissioner to the Compact, 
Federal agencies, including the Services, have provided technical 
assistance to the States' negotiators on various water management 
issues, including the needs of species protected under the Act. The 
State negotiators are not obligated to act upon any such technical 
assistance, and the Compact does not relieve Federal agencies, 
including the Services, of responsibilities under other Federal 
statutes or court rulings. This rule designating critical habitat 
fulfills our requirements under the Act and the order of the United 
States Court of Appeals for the Fifth Circuit.
    Comment 21: One commenter stated that by designating the 
Apalachicola River as critical habitat for the Gulf sturgeon, the 
Federal government necessarily becomes involved in the water 
negotiations for the ACF Compact and usurps authority from the State of 
Georgia to negotiate stream flows in that river basin.
    Our Response: State and Federal roles under the ACF Compact are 
quite distinct, as noted in our response to comment 20, and this rule 
in no way alters those roles. No authority is taken from the States, as 
the critical habitat provisions of the Act apply to Federal agencies 
and their actions only. Federal agencies acting in the ACF Basin are 
obligated to comply with sections 7 and 10 of the Act with or without 
an ACF Compact, and the States are solely empowered to negotiate a 
water allocation formula for the ACF Basin with or without designated 
critical habitat for the Gulf sturgeon.
    Comment 22: The USACE's Mobile District expressed concern with 
potential requirements to alter reservoir operations at the Jim 
Woodruff Lock and Dam on the Apalachicola River in Florida, in order to 
support minimum flow for Gulf sturgeon spawning. They are concerned 
that a critical habitat designation could require substantial upstream 
flow releases.
    Our Response: As noted in the response to comment 42, preliminary 
data suggest that if adjustments to reservoir operations are reasonable 
and prudent in the conservation of the sturgeon, such adjustments would 
likely occur infrequently, since it appears that flows do not limit 
sturgeon spawning habitat availability in most years on the 
Apalachicola River. Under section 7(a)(2) of the Act, Federal agencies 
must avoid jeopardizing the continued existence of a species or the 
destruction or adverse modification of designated critical habitat. 
During the consultation process, Federal agencies share responsibility 
with us for determining what operational adjustments, if any, would be 
reasonable and prudent for sturgeon conservation. We acknowledge that 
the USACE must consider its responsibilities for flood control, power 
generation, navigation, water quality, other fish and wildlife, etc., 
as well as listed species conservation, in making its operational 
decisions, and we appreciate the complexities of these decisions.
    Comment 23: One commenter objected to critical habitat designation 
because it would impede construction of any dam deemed necessary by the 
public for water supply, flood control, and recreation.
    Our Response: The Act's requirements regarding proposed and 
designated critical habitat apply only to Federal actions, such as 
constructing Federal reservoirs or issuing Federal permits for non-
Federal reservoirs (e.g., a Clean Water Act section 404 permit). For 
such actions, the Federal agency's responsibility is to consult with us 
to ensure that its actions are not likely to jeopardize the continued 
existence of listed species or destroy or adversely modify designated 
critical habitat. Reasonable and prudent alternatives to

[[Page 13380]]

avoid jeopardy or critical habitat destruction resulting from reservoir 
construction, or reasonable and prudent measures to minimize take 
resulting from reservoir construction, would depend entirely on the 
size, location, and operational plan of the reservoir and its effects 
on the primary constituent elements (e.g., flow regime, water quality, 
passage). Reservoirs constructed downstream of spawning habitat would 
have far different and likely greater impacts than those constructed 
upstream of spawning habitat or on tributaries.
    Comment 24: Three commenters requested clarification and examples 
of specific activities that may affect essential features of the 
designated area, a quantitative definition or explanation of 
``appreciably reduce,'' and information on how we intend to quantify 
the degree of impacts. One commenter requested that a mechanism be 
developed to assess the severity of the action based on the ability of 
the impacted area to recover as viable habitat.
    Our Response: The value of critical habitat is appreciably 
diminished when an action considerably reduces the capability of 
designated or proposed critical habitat to satisfy requirements 
essential to the conservation of a listed species. We continue to 
consult with agencies to determine the effects of an action on the 
primary constituent elements within the designated critical habitat by 
utilizing the best available scientific data. It is our intent to 
carefully assess each proposed project within Gulf sturgeon critical 
habitat and analyze how the proposed action may impact (both directly 
and indirectly; both temporally and spatially) those physical or 
biological features that were the basis for determining the habitat to 
be critical. As stated in the proposed rule, actions that may destroy 
or adversely modify Gulf sturgeon critical habitat may include, but are 
not limited to, dredging; dredge material disposal; channelization; in-
stream mining; land uses that cause excessive turbidity or 
sedimentation; water impoundment; hard-bottom removal for navigation 
channel deepening; water diversion; dam operations; release of 
chemicals, biological pollutants, or heated effluents into surface 
water or connected groundwater via point sources or dispersed non-point 
sources; release of chemical or biological pollutants that accumulate 
in sediments; and other physical or chemical alterations of channels 
and passes. Note, however, that these same activities may be carried 
out in a way that does not destroy or adversely modify critical 
habitat. Such assessments are highly site and fact specific and the 
information about the species and its habitat is continually expanding. 
Therefore, whether the ``appreciably diminish'' threshold has been met 
is a consultation-specific determination.
    Comment 25: One commenter expressed concerns that the critical 
habitat designation will prevent maintenance dredging which is required 
for continued use of the Gulf Intracoastal Waterway (GIWW).
    Our Response: Gulf sturgeon migration and feeding may occur within 
the GIWW in some of the proposed units. As stated in the proposed rule 
(67 FR 39114), portions of the GIWW that consist primarily of excavated 
land cuts and canals have been excluded from this designation because 
they were not available to the species historically, and therefore, are 
not considered to be essential for the conservation of the species.
    The GIWW requires periodic dredging by the USACE to maintain safe 
and adequate passage. As stated in the proposed rule (67 FR 39125), 
dredging is an action that may destroy or adversely modify Gulf 
sturgeon critical habitat. We will work closely with the USACE to 
identify appropriate measures to reduce dredging impacts to Gulf 
sturgeon critical habitat while allowing maintenance dredging to 
continue in the GIWW without interruption.
Issue E: Public Involvement
    Comment 26: Three commenters had questions and concerns regarding 
boating and sturgeon with regard to records of boat strikes on sturgeon 
and options for regulating boat speed. One commenter stated that 
critical habitat is just another way to impose restrictions and 
regulations on the boating public.
    Our Response: Regulating speed of boats to prevent sturgeon injury 
or death would be an issue related to ``take'' of Gulf sturgeon and not 
related to critical habitat. Boat speed is unlikely to have any 
significant effect on primary constituent elements for Gulf sturgeon.
    Comment 27: One commenter asked how anyone can be of help in our 
project of recovery and designation of critical habitat for the Gulf 
sturgeon.
    Our Response: Maintaining a natural vegetative buffer along streams 
and rivers, and participating in watershed conservation groups that 
work on protecting and restoring river and bay habitat help conserve 
the sturgeon's critical habitat.
    Comment 28: One commenter wondered how the critical habitat 
designation would raise public awareness and offer additional 
educational and informational benefit.
    Our Response: Critical habitat provides non-regulatory benefits to 
the species by informing the public (via newspaper articles, newspaper 
notices, public meetings, public hearings, etc.) of areas that are 
important for species recovery and where conservation actions would be 
most effective. Designation of critical habitat helps focus 
conservation activities for a listed species on the areas that contain 
the physical and biological features that are essential for 
conservation of that species, and alerts the public and land-managing 
agencies to the importance of those areas.
Issue F: Methods
    Comment 29: One commenter suggested that we have not included 
unoccupied habitat upstream of dams in the Apalachicola River Basin and 
the Hillsborough River Basin because access is not available. The 
commenter believes that these areas may be essential to the 
conservation of the species.
    Our Response: The commenter provided no data to support why these 
two areas may be essential. Further, we have no historic records of 
Gulf sturgeon using the Hillsborough River. Areas upstream of water 
control structures were included elsewhere because they contain the 
only known suitable spawning habitat for a subpopulation that shows 
evidence of reproduction, and therefore, were deemed essential to the 
conservation of the species. We believe there is sufficient habitat 
downstream of the Jim Woodruff Lock and Dam on the Apalachicola River 
to sustain a population of Gulf sturgeon. We believe that what we have 
designated for the Gulf sturgeon is based on the best available 
scientific information and includes what we consider to be essential to 
the conservation of the Gulf sturgeon.
    Comment 30: The Services intend to protect spawning habitats from 
catastrophic occurrences by including both the main stem spawning sites 
and at least one tributary site. One commenter asked why we included 
just one tributary site.
    Our Response: Each subpopulation for which critical habitat was 
designated had historic records of sturgeon using a mainstem river and 
at least one additional tributary. We included at least one tributary 
for relief from potentially catastrophic events. Including additional 
tributaries without historic records was not feasible because we have 
no indication that the sturgeon

[[Page 13381]]

would use these areas, and therefore, no evidence that they are 
essential to the conservation of the species. When data documented 
fairly recent use of additional tributaries, those tributaries were 
included. For example, the Pascagoula River subpopulation has sections 
of the Bouie River, the Leaf River, and the Chickasawhay River 
designated as critical habitat because data support sturgeon use.
    Comment 31: One commenter asked if any of the proposed critical 
habitat is in the State of Georgia.
    Our Response: No. Although the historic range of the Gulf sturgeon 
includes the Flint River, and possibly parts of the Chattahoochee 
River, we determined that none of the historic habitat in Georgia is 
essential to the conservation of the Gulf sturgeon.
    Comment 32: One commenter suggested that the critical habitat 
designation should be limited to a few specific areas within the range 
of the Gulf sturgeon that are most important to their continued 
survival (e.g., spawning areas, nursery areas, summer holding areas, 
and fall and winter foraging areas).
    Our Response: We considered the biological basis for a more site-
specific approach and concluded that it would not secure all biological 
features essential for the conservation of the species. The site-
specific approach would neglect the importance of a migration corridor 
between spawning, resting, and feeding areas. Also, young-of-year and 
possibly juvenile sturgeon (less than 5 kg (11 lbs) (Mason and 
Clugston, 1993)) actively forage throughout the riverine system.
    Comment 33: One commenter requested that we discuss our rationale 
for not designating unoccupied areas when the Services had previously 
stated that unoccupied habitat would be necessary for Gulf sturgeon 
recovery.
    Our Response: As we stated in the proposed rule, since approval of 
the Recovery Plan in 1995 and our 1998 ``not prudent'' finding, the 
science of conservation biology has matured. The methods section cites 
numerous recent publications that contributed to our decision to select 
the areas we did and why they constitute habitat sufficient for the 
conservation of the species. We have also collected significant new 
biological information on this species. For example, we now have a 
better understanding on status of the Pearl River system subpopulation; 
we are confident that adult Gulf sturgeon are accessing spawning 
habitats above Pools Bluff Sill and Bogue Chitto Sill during high 
flows; spawning was confirmed in 1999 on the Pascagoula River 
subpopulation; usage of the Chickasawhay River, a major tributary to 
the Pascagoula River, was recently documented; spawning was confirmed 
in 2001 at five locations on the Escambia River; young-of-year have 
been confirmed on the Yellow River system and population estimates are 
580 Gulf sturgeon 1 m (3.3 ft) or greater in size; additional suitable 
spawning sites were documented on the Apalachicola River in 2002; and 
between 1993 and 1998, additional spawning sites were confirmed on the 
Suwannee River population. We believe that what we have designated for 
the Gulf sturgeon is based on the best available scientific information 
and includes those areas essential to the conservation of the Gulf 
sturgeon.
    Comment 34: Three commenters requested that the Services provide 
additional detail or quantify the specific habitat requirements for 
each life history stage, specifically abundant prey, flow regime, water 
temperature, salinity, pH, oxygen content, etc.
    Our Response: We have summarized the current knowledge of the 
species, including life history requirements in the ``Background'' 
section of this rule. However, data are not yet available to more 
quantitatively express the primary constituent elements of Gulf 
sturgeon critical habitat. To make the critical habitat rule adaptive 
to increasing knowledge, we have kept the primary constituent elements 
general. When consultations on projects occur, biologists will use the 
best available science available at the time of consultation to 
determine whether the functions of those elements would be adversely 
modified by the proposed Federal action. Research is ongoing, and as 
those data are collected, we expect to understand better Gulf sturgeon 
and its life history requirements.
    Comment 35: One commenter stated that habitat is identified 
primarily for adults (spawning sites, resting areas, winter feeding), 
but not for larvae, juvenile, and subadult life stages. S/he also 
suggested a need to cite specific studies rather than using the term 
``gathered all available'' data.
    Our Response: The commenter is referring to statements in the 
``Methods'' section, which is written in general terms to explain how 
we decided which riverine, estuarine, and marine areas to include as 
critical habitat. We disagree with the commenter that the rule ignores 
life stages besides the adult stage. We stated in the proposed rule 
that we included riverine habitat from the river mouth up to and 
including spawning grounds to provide sufficient habitat for the 
riverine life stages of Gulf sturgeon. These life stages require 
habitat for summer resting or staging areas, juvenile feeding, entire 
young-of-year life cycle (including larval stages), passage throughout 
the river (protects all life stages), and passage into and out of 
estuarine habitat for adults and subadults. 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 in estuaries and bays adjacent to the riverine units 
described above would protect both passage of sturgeon to and from 
their feeding and spawning grounds and also the abundance of estuarine 
and marine prey for juvenile and adult sturgeon.
    Specific references used for making our determination are cited 
throughout the ``Background'' and ``Critical Habitat Unit 
Descriptions'' sections of the proposed and final rules. A complete 
list of all references cited is presented in the ``References Cited'' 
section of this final rule.
    Comment 36: One commenter stated that the areas included in the 
proposal are those where studies have been directed toward sturgeon and 
that it should not be assumed that other rivers do not have critical 
habitat just because sturgeon have not been found in routine fishery 
surveys. They also stated that routine fishery surveys can and have 
missed the presence of sturgeon.
    Our Response: We have based our designation on the best scientific 
data available. However, the level 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 and estuarine environment, we 
acknowledge that habitat other than that identified in this final rule 
may later be found to be essential to the conservation of Gulf 
sturgeon. To the extent feasible, we will continue to conduct and 
support 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 in areas not 
included as critical habitat will continue to receive protection under 
the section 7 jeopardy standard and the section 9 prohibitions on take.

[[Page 13382]]

    Comment 37: One commenter suggested that we clarify our use of 
vague terms in the proposed rule (e.g., strongly suspect, believed to 
appear, possibly appropriate, relatively sediment free).
    Our Response: We appreciate the commenter's sentiments. However, it 
is seldom possible to make statements with complete or even relative 
certainty when describing the biological and habitat requirements of an 
endangered or threatened species. We have expressed ourselves as 
definitively as possible using the best available scientific data, 
recognizing the need for consultation-specific flexibility over time as 
new information is developed about the species and its habitat.
    Comment 38: Two commenters requested clarification of the lateral 
extent of the critical habitat unit descriptions in the estuarine and 
marine areas; clarification of our mean high water line determination, 
and clarification of our use of an average high water calculation over 
an 18.6 year period rather than using all available tidal data.
    Our Response: Regulatory jurisdiction in coastal areas is 
administered by the USACE and is described in 33 CFR 329.14(a)(2) as 
``the line on the shore reached by the plane of the mean (average) high 
water (MHW).'' 33 CFR 329.14(a)(2) further states that when precise 
determination of the MHW line is necessary, it is preferable to average 
tidal data over a period of 18.6 years, which is a Metonic cycle, i.e., 
the period in which new and full moon recur in the same order and on 
the same days as in the preceding cycle.
Issue G: Jurisdiction
    Comment 39: Three comments were received on the proposed 
jurisdictional responsibilities for the management of the Gulf 
sturgeon. Two commenters believe that FWS, instead of NMFS, should have 
jurisdiction in the estuarine areas, and one commenter requested 
clarification on the technical basis for determining areas of 
regulatory jurisdiction in coastal areas.
    Our Response: In 1974, a memorandum of understanding (MOU) was 
developed to clarify jurisdictional responsibilities for the NMFS and 
FWS. Section 1(a) of the 1974 MOU outlines jurisdiction by waterbody 
and states that all non-mammalian species, with a few exceptions not 
including Gulf sturgeon, that reside the major portion of their 
lifetime in estuarine waters shall be under the jurisdiction of the 
NMFS. Similarly, the FWS would have jurisdiction over species that 
spend the major portion of their lifetimes on land and/or in fresh 
water.
    While the MOU does not contain specifics on jurisdictional 
boundaries for critical habitat, the Services have applied the standard 
set for listing species to this critical habitat rule--that is, NMFS 
will have jurisdictional responsibility for marine waters and the FWS 
for fresh water. In estuarine waters, the Services will consult based 
on their respective expertise as described in the proposed rule. Under 
this arrangement, the FWS will consult with the EPA since it has 
expertise in water quality issues, and the NMFS will consult with the 
USACE to maximize efficiency for the action agency when other federally 
protected species may be present (e.g., protected sea turtles which 
fall under the jurisdiction of NMFS in marine and estuarine waters).
Issue H: Economic Analysis
    Comment 40: One commenter supported the two-baseline approach to 
the economic analysis used by the Services, and went on to suggest that 
the lower baseline, that identifies costs solely attributable to 
critical habitat designation, need not be included in the analysis to 
be responsive to the decision in New Mexico Cattle Growers Association 
v. USFWS, 248 F.3d 1277 (10th Cir. 2001). The commenter paraphrased the 
10th Circuit's holding as requiring that costs resulting from the 
listing of a species must be considered along with the costs of 
critical habitat designation in determining whether the costs of such 
designation outweigh the benefits. The commenter went on to support the 
inclusion of costs associated with both jeopardy consultations and 
adverse modification consultations, and resulting project modification 
costs, in the economic analysis, stating that the full spectrum of 
impacts associated with the listing and critical habitat designation 
presents a more realistic and comprehensive understanding of probable 
impacts in the affected region.
    Our Response: In New Mexico Cattle Growers Association, the 10th 
Circuit ruled that the full costs of critical habitat designation must 
be captured in an economic analysis performed in accordance with 
section 4(b)(2) of the Act, and thus that costs that might be incurred 
co-extensively as a result of both listing and critical habitat 
designation must be included in the analysis. For example, projects 
that might modify spawning habitat of Gulf sturgeon would give rise to 
a consultation on both jeopardy and adverse modification grounds, and 
the costs of such consultations must be attributable to critical 
habitat designation.
    Comment 41: One commenter raised questions about impacts to Federal 
hydropower generation in the ACF Basin. Without specific details as to 
the minimum and maximum flows necessary for spawning and other flow-
related habitat questions, the commenter contends ``the economic 
ramifications of this proposal cannot be properly considered, as 
required by law.''
    Our Response: We agree that a meaningful assessment of economic 
impacts that could result from modifying the operations of the USACEs' 
ACF reservoirs to avoid or minimize impacts to Gulf sturgeon habitat in 
the Apalachicola River is not possible at this time because too many 
variables, such as those listed by the commenter, are unknown. Based on 
the limited data that are currently available about the flow rates that 
inundate potential spawning habitat, the FWS believes that any 
reasonable and prudent adjustments to ACF project operations to protect 
sturgeon spawning would be infrequent. As a result, the costs over time 
to project purposes such as hydropower would be relatively small. The 
basis for this preliminary determination and a brief description of the 
informal consultation that is underway between the USACE and the FWS 
about ACF project operations effects on sturgeon follows.
    Possible flow-related limitations to spawning habitat in the 
Apalachicola River were not recognized until the spring of 2002, when 
project operations and unusually low basin runoff entering the fourth 
year of a regional drought exposed limestone outcroppings and other 
hard-bottom portions of the main channel. These hard-bottom areas, 
which likely support spawning by the small Apalachicola sub-population, 
are inundated during the spring months of most years by the combination 
of unregulated basin runoff and the USACEs' operations of the ACF 
reservoirs for project purposes other than the conservation of species 
and habitats protected under the Act. On May 2, 2002, FWS personnel 
surveyed a site near where sturgeon larvae were collected in 1977 
(Wooley et al., 1982) and 1987 (Foster et al., 1988). FWS estimated the 
maximum discharge that would fully expose the outcropping and the 
minimum discharge that would fully inundate it. These estimates were 
173 cubic meters per second (cms) (6,118 cubic feet per second (cfs)) 
and 317 cms (11,200 cfs), respectively. The minimum depth at which Gulf 
sturgeon eggs have been collected is 1.4 m (4.6 ft) (Fox et

[[Page 13383]]

al., 2000). The estimated discharge corresponding to 1.4 m (4.6 ft) 
inundation of the bottom of the limestone shelf was 424 cms (14,970 
cfs), and 612 cms (21,610 cfs) for the top of the shelf. During the 
March 15 to May 15 timeframe, when sturgeon spawning most likely 
occurs, daily average flow rates have exceeded 424 cms (14,970 cfs) and 
612 cms (21,610 cfs) 87 percent and 63 percent of the time, 
respectively, in the 1929 to 2002 flow record of the Chattahoochee 
gage. March 15 to May 15 average discharge exceeds these flow rates in 
97 percent and 77 percent of the years, respectively.
    If flow rates between 424 cms (14,970 cfs) and 612 cms (21,610 cfs) 
are sufficient for successful sturgeon spawning on the Apalachicola 
River, any adjustments to reservoir operations that appear reasonable 
and prudent for sturgeon conservation would occur relatively 
infrequently, during the occasional years when spring-time hydrologic 
conditions and operations for other project purposes do not provide 
flows in this range. However, this flow range is based on one set of 
measurements at one site and relies upon the minimum depth at which 
eggs have been previously collected (4.6 feet); other sites with 
different hydrologic characteristics may support spawning and depths 
less than 4.6 feet may allow for successful spawning. Annual monitoring 
of the Apalachicola sturgeon population by net sampling shows year 
classes represented for all years from 1986 to 1998. In none of these 
years were all days in the March 15 to May 15 time frame greater than 
612 cms (21,610 cfs), but all of these years had at least 11 days 
greater than 612 cms (21,610 cfs). In 2002, no days from March 15 to 
May 15 had flow greater than 612 cms (21,610 cfs). We will not know for 
3 years, when year class 2002 individuals would become large enough to 
sample with the nets used in annual monitoring, whether the unusually 
low spring flows of 2002 resulted in a lost year class.
    The USACE and FWS have initiated a study of sturgeon spawning 
habitat in the Apalachicola River that will provide a more complete 
relationship between flow and habitat availability than the single site 
measured by FWS in May 2002. The USACE will use the results of this 
study and other information in a biological assessment of the effects 
of its current operations on the sturgeon, its proposed critical 
habitat, and other federally-protected species. This assessment will 
determine whether current operations may adversely affect federally-
protected species and their habitats and if so, serve to initiate 
formal consultation with the FWS. Until this consultation is completed, 
it is premature to make estimates of its economic impact, which is 
dependent on the results of studies that are still underway and on 
USACE decisions relative to reservoir operations that will weigh its 
responsibilities under the Act with other statutory responsibilities.
    Comment 42: One commenter stated that the economic analysis does 
not provide sufficient information to determine if the benefits of 
exclusion outweigh the benefits of inclusion of individual critical 
habitat units. The comment goes on to ask whether inclusion of any unit 
would materially affect the recovery of the Gulf Sturgeon, and requests 
that the Services provide a metric by which to determine whether 
inclusion of any unit is economically warranted.
    Our Response: Section 4(b)(2) of the Act directs that critical 
habitat, areas containing biological and physical features essential to 
the conservation of the species, shall be designated after taking into 
account the economic impacts and other relevant impacts of such 
designation. The Secretaries of the Interior and Commerce have the 
discretion to exclude areas from such designation if the benefits of 
exclusion outweigh the benefits of inclusion, unless failure to 
designate such areas will result in the extinction of the species 
concerned. This language does not establish a test of whether inclusion 
is ``economically warranted.''
    Comment 43: One commenter suggested that uncertainty over the 
spatial and temporal scale that would be involved in future application 
of the destruction or adverse modification standard should be 
acknowledged, that costs could depend upon whether that standard is 
applied to the designated critical habitat as a whole, within 
individual units, or some other scale, and whether the standard would 
be triggered by temporary or long term impacts.
    Our Response: The Gulf sturgeon's affinity for natal river systems 
and the importance of every breeding unit of the species suggests that 
individual units or groups of units that are used by stocks or 
subpopulations which fulfill essential geographic distribution 
requirements are the appropriate scale for the analysis. The outcome of 
each destruction or adverse modification analysis is highly fact 
specific, dependent not only upon the species and designated critical 
habitat at issue, but also upon the particular project and its impact 
upon the primary constituent elements of the critical habitat. The 
economic analysis for this rule estimated costs of consultations on 
projects that the consulting Federal agencies advised were likely to be 
implemented in the next 10 years. Thus, the uncertainty in the analysis 
would be attributable to unforseen or uncertain projects and their 
impacts, as well as a lack of detail about each projected project, and 
there is no way to address this uncertainty in any non-speculative 
manner.
    Comment 44: The Mobile and New Orleans Districts of the USACE 
raised questions regarding the economic analysis' incorporation of 
dredging windows as potential project modifications.
    Our Response: Based on comments received from the USACE and further 
analysis by the Services, the economic analysis has been modified by 
removing dredging windows as potential project modifications that would 
be included in each formal consultation and omitting estimated costs of 
such. These changes reflect the extreme improbability that dredging 
windows would be recommended or adopted as a project modification to 
reduce impacts to critical habitat (as opposed to preventing take), 
given the availability of other means of protecting sturgeon or its 
habitat with adequate coordination and planning between the USACE and 
us.
    Comment 45: Several commenters expressed concerns over the 
potential effects of critical habitat designation on water flow regimes 
in the Apalachicola River, and whether needs to alter flow regimes to 
protect sturgeon or its habitat might impose costs by impacting 
hydropower or businesses and recreation dependent on existing 
reservoirs (e.g., Lake Sidney Lanier).
    Our Response: Section 3.4 of the economic analysis has been revised 
to more fully discuss the factors associated with estimating economic 
impacts related to flow regime modifications that may emerge from 
consultation with the USACE as reasonable and prudent for the sturgeon 
and its habitat in the Apalachicola River. Conservation of listed 
species is one of many responsibilities the USACE must consider in 
operating the Apalachicola Basin reservoir projects, which are 
variously authorized for the purposes of flood control, hydropower, 
navigation, recreation, water quality, water supply, and fish and 
wildlife. Changing reservoir operations for sturgeon conservation could 
affect the degree to which the USACE is able to fulfill other project 
purposes; however, under normal and wet rainfall conditions, existing 
operations appear adequate to protect the sturgeon and its habitat. If

[[Page 13384]]

project operations do not release enough water, as is the case during 
droughts, spawning habitat may be exposed or too shallow for sturgeon 
to use successfully. The USACE and FWS are presently in informal 
consultation on the effects of ACF reservoir operations on federally-
listed species, and are investigating the relationship between flow and 
sturgeon spawning habitat availability in the Apalachicola River. 
Although these studies are not yet completed, the FWS believes that 
project modifications for sturgeon conservation would likely represent 
reasonable minor adjustments to existing operations that would minimize 
the impacts of unavoidably adverse conditions. The economic analysis 
concludes that the effects of such modifications on the regional 
economy would be small (less than 0.1 percent).
    Comment 46: Several commenters suggested that the economic analysis 
did not adequately address secondary impacts of critical habitat 
designation on the economy on a regional scale. These commenters 
expressed concerns about impacts on the shipping and navigation 
industries and their support services, on future commercial and 
industrial development, and on commercial fishing, particularly shrimp 
fishing.
    Our Response: Section 2.1 of the economic analysis has been revised 
to provide more information on the current level of economic activity 
in the areas in or around the critical habitat designation. Specific 
information on State gross products and time series employment data 
have been added. Regional data on waterborne economic activity, 
including waterborne commerce, commercial fishing, recreational 
fishing, other water-based recreation, and hydropower generation are 
more fully presented. Thus, the revised economic analysis provides an 
appropriate economic baseline against which to evaluate the 
significance of section 7 costs associated with critical habitat 
designation.
    After identifying and evaluating the activities likely to give rise 
to section 7 consultations and thus direct costs of critical habitat 
designation in section 3.2, the economic analysis discusses potential 
secondary impacts on the regional economy in section 3.4. Past 
consultations have not resulted in project changes that have affected 
the regional economy, including the particular activities of concern to 
the commenters, and no comments provided specific examples of how 
future consultations would result in regional economic impacts.
    Waterborne commerce is unlikely to be affected by the critical 
habitat designation because all available evidence indicates that 
future operations and maintenance navigation projects will proceed 
without changes to timing and scope. Moreover, the frequently 
maintained portions of the major shipping channels located within the 
critical habitat designation are altered to an extent that any primary 
constituent elements for sturgeon that are still present in the 
channels are unlikely to be appreciably diminished from their current 
baseline by Federal actions in the channels. Portions of shipping 
channels that are not frequently maintained and new dredge material 
disposal sites likely contain one or more primary constituent elements 
and therefore have a higher likelihood for project modifications to be 
recommended.
    No limitations to commercial fishing activities are expected to 
result from section 7 consultations pertaining to Gulf sturgeon (see 
Section 3.4.3 of the economic analysis).
    Past consultations and available evidence do not indicate that 
county-wide economies or employment will be impacted by this critical 
habitat designation (see Section 3.4.4 of the economic analysis).
    Comment 47: One Mississippi County Commissioner expressed concern 
over closure of a shipping channel through Little Lake and the lower 
Pearl River, and its impact on commercial navigation.
    Our Response: If the shipping channel were closed, it would be 
attributable to litigation filed by the Tulane Environmental Law Clinic 
over water quality certification, and not due to sturgeon protection. 
Thus, no modifications were made to the economic analysis.
    Comment 48: Two commenters stated that the economic analysis should 
acknowledge the controversy surrounding option and existence values and 
the methodologies available to estimate these values. One commenter, 
the USACE, stated that it does not allow these values to be claimed in 
its economic studies ``because the academic community does generally 
not accept the procedures used to estimate them.'' The USACE went on to 
state that the studies presented in the economic analysis are not 
related to the Gulf sturgeon, the studies' methods are not discussed, 
and inclusion of the information adds nothing to the document.
    Our Response: The final economic analysis notes the controversy 
that the commenter discusses as revolving around the use of contingent 
valuation methodology. Therefore, the economic analysis in Section 5.2 
has been revised to better explain the relevance of these values to 
this critical habitat designation, by including a fuller explanation of 
contingent valuation methodology, and adding more detail to the 
discussion and exhibits relating to the economic literature on 
valuation of natural resources such as threatened and endangered 
species, and the applicability of the benefits transfer methodology.
    Comment 49: Two comments stated that the economic analysis 
presented a flawed analytical approach in ignoring the time value of 
money and present values.
    Our Response: The economic analysis has been modified (see Section 
4.3) to include the present value of the total estimated costs of the 
critical habitat designation, using 2 discount rates in order to 
provide a measure of sensitivity analysis. The economic analysis now 
also presents annualized cost estimates for the 10 year period 
considered for this designation.
    Comment 50: Two comments state that the economic analysis fails to 
meet requirements for economic analyses, including using inappropriate 
and archaic research techniques.
    Our Response: We believe that the methodology used is appropriate 
for and consistent with the analysis of economic impacts required by 
the Act, which does not mandate a strict cost-benefit analysis. The 
methodology used to produce the economic analysis has been peer-
reviewed. We further believe that the research used is appropriate for 
the analysis required by the Act, and provides the best available 
scientific information available. Economic analyses are typically based 
on direct conversations with the action agencies regarding their 
expected future actions and costs.
    Comment 51: One comment stated that it is unreasonable to predict 
zero costs associated with project modifications attributable solely to 
critical habitat designation.
    Our Response: No information was provided, and none was available, 
regarding project modifications that would be attributable solely to 
critical habitat designation, as opposed to being attributed co-
extensively to take of or jeopardy to the species.
    Comment 52: One comment stated that the economic analysis did not 
fully consider costs to the States that might arise from consultations 
with EPA over pollution discharge permits.
    Our Response: There is no evidence that past or future EPA projects 
have or

[[Page 13385]]

will be delayed due to consultations regarding sturgeon protection. 
Current EPA water quality standards take protection of endangered and 
threatened species and their habitat, including Gulf sturgeon, into 
account.
    Comment 53: One comment asserted that the economic analysis should 
cover at least a 20-year period.
    Our Response: To be credible, the economic analysis must estimate 
economic impacts based on activities that are reasonably foreseeable. 
The revised economic analysis does include annualized cost estimates to 
10 years. It is difficult to predict the costs of consultations on 
activities beyond a 10-year window. Costs for section 7 consultations 
may increase or decrease dependent on factors other than inflation or 
deflation. For example, changes in requirements for development of a 
biological assessment may occur, or fluctuations in the cost of 
biologists and consultants. In order to maintain reasonable confidence 
in the estimated total section 7 costs, the analysis quantifies costs 
occurring within a ten year time frame. However, the final economic 
analysis does include annualized cost estimates, to the extent that 
these may inform the commenter's projections of costs over a 20-year 
period (see Section 4.3).
    Comment 54: A few commenters stated that the economic analysis may 
underestimate impacts on small businesses secondarily impacted by 
consultations with Federal agencies.
    Our Response: The courts have held that the Regulatory Flexibility 
Act requires an agency to perform a regulatory flexibility analysis 
only when a rule directly regulates them (Mid-Tex Elec. Coop, Inc. V. 
FERC, 773 F.2d 327 (D.C. Cir. 1985) and American Trucking Ass'ns, Inc. 
V. EPA, 175 F.3d 1027, 1044 (D.C. Cir. 1991)). Accordingly, the 
economic analysis considered the total costs that may affect small 
entities through section 7 of the Act. Activities likely to be impacted 
include those associated with operation and maintenance of navigation 
projects, highway bridge construction, and pipeline construction 
projects. The analysis found that less than one percent of these 
industries in the region would be affected and that it was likely that 
most of the costs imposed by the designation would be passed through to 
the Federal government as the government contracts for such services.
Issue I: Potential Impact to Commercial Shrimp Fishery
    Comment 55: Three commenters requested clarification on how 
designation of critical habitat would impact the commercial shrimp 
fishery, and if sturgeon are a bycatch of shrimping.
    Our Response: Shrimp trawling may impact both the Gulf sturgeon and 
its critical habitat. Shrimp trawling may directly affect Gulf sturgeon 
by capturing them in trawl nets. There is one documented non-lethal 
take of a sturgeon during testing of a Turtle Excluder Device (TED) 
equipped flounder trawl off Long Island, New York; the Atlantic 
sturgeon was approximately 1 m (3 ft) in total length, and was released 
alive (J. Mitchell, NOAA Fisheries, Pascagoula Laboratory, pers. comm. 
2002). In addition, a single sturgeon is reported in the NOAA Fisheries 
shrimping bycatch database (E. Scott-Denton, NOAA Fisheries, Galveston 
Laboratory, pers. comm. 2002) as taken by shrimp trawling; an Atlantic 
sturgeon was captured off Georgia (Atlantic Ocean) in 1995. Anecdotal 
information indicates that while some sturgeon are taken by shrimp 
trawlers, many fish are alive as local researchers are often contacted 
so they may tag and release the fish (H. Rogillio, LADWF, pers. comm. 
2002). Currently shrimp fishers report fewer sturgeon are being caught 
in the nets, which may reflect escapement through the TED or fewer 
incidents being reported. Regardless of critical habitat, the Gulf 
sturgeon was listed as a threatened species under the Act on September 
30, 1991, and it, therefore, is protected wherever it occurs. Take of 
Gulf sturgeon that is not authorized (e.g., through a section 7 
consultation or through an incidental take permit) is unlawful.
    The most likely effect of shrimp trawling on Gulf sturgeon critical 
habitat would be the disturbance of the benthic environment by trawling 
gear. This issue is being investigated at the NOAA Fisheries Galveston 
Laboratory. Until such time as conclusive data becomes available, any 
correlation between shrimp trawling and a negative effect on Gulf 
sturgeon critical habitat would be tenuous. While benthic molluscan and 
crustacean prey items favored by Gulf sturgeon could conceivably be 
disturbed as the shrimp trawl passes over the bottom, a possible effect 
of that disturbance would be to make them more susceptible to predation 
by Gulf sturgeon, possibly enhancing foraging opportunities. Although 
shrimp trawls may capture Gulf sturgeon, and the benthos within 
critical habitat may be disturbed, there is little to suggest that 
shrimp trawling significantly affects the Gulf sturgeon or its critical 
habitat at this time.
Issue J: Policy and Regulations
    Comment 56: One commenter stated that the proposed action serves to 
provide an additional layer of bureaucracy without any tangible 
benefits and appears to be a redundant and reaction to litigation filed 
against the Services in 1994 by the Sierra Club Legal Defense Fund and 
the Florida Wildlife Federation. Three commenters stated that the 
Services previously made not prudent determinations regarding critical 
habitat and requested additional information (data/biological factors) 
and detail to explain the Services change in position.
    Our Response: We had previously determined that designation of Gulf 
sturgeon critical habitat was not prudent given that such designation 
would not benefit the species based upon a view that jeopardy and 
adverse modification were essentially wholly overlapping standards 
under the Act. After the Fifth Circuit Court of Appeals rejected this 
interpretation, as stated in the proposed rule (67 FR 39112), we have 
reconsidered and found that designation will be clearly beneficial to 
the species. Recent research has determined and qualified numerous 
areas important for Gulf sturgeon spawning, resting, staging, and 
foraging. Many of these important areas are only utilized seasonally, 
and therefore not afforded the protection when the species is absent. 
By designating critical habitat, the Services will be able to manage 
impacts to those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species 
regardless of the species presence or absence through the consulting 
mechanism under section 7 of the Act. For example, 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.

Summary of Changes From the Proposed Rule

    Seven changes have been made from the proposed to the final rule 
designating Gulf sturgeon critical habitat--calculation of the total 
area included in designation; inclusion of identical amendments to both 
50 CFR parts 17 and 226; verification of bridge

[[Page 13386]]

position in Unit 1; additional specifics on fish location in Unit 2; 
and exclusion of areas in Units 2, 8 and 9 under section 4(b)(2) of the 
Act.
    For the proposed rule, river kilometers (and river miles) were 
measured with USACE mileage tables (USACE, 1985a and b), when available 
for a particular river reach. When not reported in the USACE mileage 
tables, several Geographic Information System (GIS) data layers were 
used to map all units and to calculate mileages, including data from 
NOAA, Environmental Systems Research Institute, Inc., and USGS. For the 
final rule, we still relied on the USACE mileage tables (USACE, 1985a 
and b) to calculate mileages when available for a particular river 
reach, but the remaining reaches were measured and mapped using the 
National Hydrography Dataset from the USGS at a scale of 1:100,000 
(2001-2002 data set). This data layer, not available to us during the 
proposed rule, is available for the entire range of the mapped Gulf 
sturgeon critical habitat and has a higher resolution than the GIS data 
layers used for the proposed rule maps. Greater resolution results in 
the ability of the mapper to see and measure more of the rivers natural 
bends, thereby resulting in higher and more accurate river lengths. 
This change from using different data layers resulted in an additional 
river mileage of 259 rkm (161 rmi), which is a more accurate 
reflection, in reported total river kilometers and miles for all 
States, with no inclusion of additional areas.
    In the proposed rule, we inadvertently provided different 
amendments to be included in 50 CFR part 17 (FWS) and part 226 (NMFS). 
For the final rule we are making identical amendments to both Parts. 
The amendment includes: (1) Maps and textual unit descriptions of all 
14 critical habitat units, (2) the primary constituent elements 
essential for the conservation of Gulf sturgeon, and (3) a description 
of regulatory jurisdiction.
    Below are descriptions of unit-specific changes. The changes stated 
below do not include those attributed to our more fine-scale mapping 
from the proposed rule.

Unit 1

    On the Bogue Chitto River, Pike County, Mississippi, we reduced 
critical habitat in this river reach by approximately 3.2 km (2 mi) due 
to an error in what we believed to be the location of Quinn Bridge. We 
have documentation of a Gulf sturgeon sighting 1.6 km (1 mi) north of 
Quinn Bridge. In the proposed rule, we were given information that 
stated that Quinn Bridge was located on Mississippi (MS) Highway 570. 
Since the sighting was 1.6 km (1 mi) upstream of Quinn Bridge (MS 
Highway 570), in the proposed rule we ended the designation upstream of 
Quinn Bridge at Lazy Creek to encompass the fish location and to 
boundary at an area easily identifiable. We now know that Quinn Bridge 
is located along MS Highway 44 (Estes et al. 1991), so in order to 
include the fish location and to boundary the designation at an area 
easily identifiable, we have included up to MS Highway 570 in the unit, 
which is the first crossing north of MS Highway 44. See ``Map 1.1'' to 
clarify locations of MS Highly 570 and MS Highway 44.

Unit 2

    On the Bouie River, Forrest County, Mississippi, we received more 
specific information during the comment period on the location of a 
Gulf sturgeon captured above the gravel pits above Glendale Road in 
1977. This fish was located approximately 0.80 rkm (0.50 rmi) above 
Glendale Road, not further upstream as originally believed. For ease of 
identification, we have included up to the southern-most road crossing 
of Interstate 59 in the unit. We have, therefore, reduced this river 
reach by 14.5 rkm (9.0 rmi).
    In the proposed rule, we inadvertently provided different 
amendments to be included in 50 CFR part 17 (FWS) and part 226 (NMFS). 
For the final rule we are making identical amendments to both Parts. 
The amendment includes: (1) Maps and textual unit descriptions of all 
14 critical habitat units, (2) the primary constituent elements 
essential for the conservation of Gulf sturgeon, and (3) a description 
of regulatory jurisdiction.
    The Services are also excluding major shipping channels in this 
unit, as identified on standard navigation charts and marked by buoys, 
under Section 4(b)(2).

Unit 8

    The Services are excluding major shipping channels, as identified 
on standard navigation charts and marked by buoys, under Section 
4(b)(2).

Unit 9

    The Services are excluding major shipping channels, as identified 
on standard navigation charts and marked by buoys, under Section 
4(b)(2).

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.''
    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 have designated only 
currently known essential areas. We will not speculate about what areas 
might be found to be essential if better information becomes 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.

[[Page 13387]]

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 final rule 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 Final 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 included to ensure conservation of the species. We 
considered several factors in this evaluation--(1) maintaining overall 
genetic integrity and natural rates of inter-river genetic exchange, 
thereby minimizing the potential for inbreeding, (2) retaining 
potentially important selective pressure 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 conservation 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; 
and FWS et al., 1995). 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.
    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 may lead to a 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; and 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; and 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 
strong natal river fidelity, with stocks exchanging less than one 
mature female per generation on the average (Waldman and Wirgin, 1998). 
These low gene flow estimates strongly suggest that natural 
recolonization of extirpated subpopulations of Gulf sturgeon would 
proceed slowly (Waldman and Wirgin, 1998). Semi-isolated subpopulations 
are more vulnerable to the effects of demographic and environmental 
population fluctuations (Forney and Gilpin, 1989; and Wahlberg et al., 
1996).
    Gene flow estimates are usually higher between adjacent stocks, 
suggesting that migrants from semi-isolated subpopulations are 
exchanged primarily with neighboring subpopulations (Waldman and 
Wirgin, 1998). The loss of any intermediate subpopulations by a single 
environmental catastrophe could seriously limit a species' recovery 
(Kautz and Cox, 2001; and Young and Harig, 2001). In light of this, we 
determined that it is necessary to designate 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 they can 
serve as sources of sturgeon emigration, albeit at a slow rate (Waldman 
and Wirgin, 1998), to adjacent rivers and so that they can provide a 
rescue effect if an adjacent subpopulation is extirpated (Brown and 
Kodric-Brown, 1977; Hanski and Gyllenberg, 1993; and Young and Harig, 
2001).
    Designating critical habitat for only a few subpopulation units, or 
for units not spaced in a manner that allows genetic 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, 2001). 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; and Wiens, 1996).
    Because of these considerations, we reached the conclusion that 
this designation should include critical habitat units within the major 
river

[[Page 13388]]

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 support the extent and diversity of the species' genetic 
integrity and can provide a rescue effect, if needed. The Services 
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 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, larval and 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 habitat types support these life history 
components and where these habitat areas 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 final 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 and 
are presumed to be feeding. These areas are primarily in the marine or 
estuarine environment; young-of-the-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 designated 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 unit description in the ``Critical Habitat Unit 
Descriptions'' section of this final rule. Because most of the sturgeon 
species' farthest upstream movement is for spawning (Bain, 1997; and J. 
Hightower, USGS-Biological Resources Division, pers. comm. 2002), we 
have determined that the designation should include areas as far 
upstream as the furthest known or presumed spawning site. Therefore, in 
rivers where spawning sites have been confirmed, critical habitat 
extends upstream to a geographically identifiable point, such as a 
river confluence upstream of those sites. In areas where spawning sites 
are presumed but not confirmed, we have included river reaches that 
contain the appropriate substrate necessary for spawning, 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 entirely blocked by dams). The 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 subpopulation extirpation from a 
catastrophic occurrence by including up to both the main stem spawning 
sites and at least one tributary site.
    We have included riverine habitat from the river mouth upstream 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-the-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 will 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 community structure) 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 inter-
riverine movements have occurred, but no telemetry data exist to 
identify the migratory path (e.g., between the Pascagoula River and 
Yellow River, the Pascagoula and Choctawhatchee Rivers, and between 
Suwannee River and Apalachicola River), we have not designated 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 within the GIWW in some of the 
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 final designation includes a significant portion, but not all, 
of the species' historic range. The fourteen 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 critical habitat designation does 
not diminish their individual or cumulative importance to the species. 
Rather, it is our

[[Page 13389]]

determination that the seven riverine units with known spawning and 
seven associated estuarine and marine units included in this 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 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 included 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 foraging, 
there are insufficient data to support these bays' regular winter use 
or importance and no documented spawning. Therefore, we have not 
included these bays in our critical habitat designation.
    The amount of research and status surveys conducted on many Gulf 
sturgeon 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 final 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 
included as critical habitat will continue to receive protection under 
the section 7 of the Act including the 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 
designate 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 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 food 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 and substrates 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) Riverine aggregation areas, also referred to as resting, 
holding, and staging areas, used by adult, subadult, and/or juveniles, 
generally, but not always, located in holes below normal riverbed 
depths, believed necessary for minimizing energy expenditures during 
fresh water residency and possibly for osmoregulatory functions;
    (4) A flow regime (i.e., the magnitude, frequency, duration, 
seasonality, and rate-of-change of fresh water 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;
    (5) 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;
    (6) Sediment quality, including texture and other chemical 
characteristics, necessary for normal behavior, growth, and viability 
of all life stages; and
    (7) Safe and unobstructed migratory pathways necessary for passage 
within and between riverine, estuarine, and marine habitats (e.g., an 
unobstructed river or a dammed river that still allows for passage).

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 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 critical habitat 
units are 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 all units may require 
special management or protection.

[[Page 13390]]

Critical Habitat Designation

    The areas designated 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 the 
designated critical habitat. All of the designated areas require 
special management considerations to ensure their contribution to the 
conservation of the Gulf sturgeon. The boundaries of critical habitat 
units are described generally below.

 Table 1.--Approximate Linear Distance of the Riverine Critical Habitat
                       Units for the Gulf Sturgeon
       [Main Stems Are Listed First and Tributaries Are Indented]
------------------------------------------------------------------------
 Critical habitat unit-- river                        River       River
            systems                   State         kilometers    miles
------------------------------------------------------------------------
1. Pearl (East, West, and all   Louisiana/                 632       393
 distributaries).                Mississippi.
    Bogue Chitto..............  .................          163       101
2. Pascagoula.................  .................          203       126
    Leaf......................  .................          164       102
    Bouie.....................  Mississippi......           10         6
    Chickasawhay..............  .................          232       144
    Big Black Creek...........  .................            8         5
3. Escambia...................  Florida/.........          117        73
    Conecuh...................  Alabama..........          127        79
    Sepulga...................  .................           11         7
4. Yellow.....................  Florida/.........          154        96
    Blackwater................  Alabama..........           18        11
    Shoal.....................  .................           13         8
5. Choctawhatchee.............  Florida/.........          249       155
    Pea.......................  Alabama..........           92        57
6. Apalachicola...............  Florida..........          254       158
    Brothers..................  .................           24        15
7. Suwannee...................  Florida..........          293       182
    Withlacoochee.............  .................           19        12
                                                  --------------
        Total.................  .................        2,783     1,730
------------------------------------------------------------------------


 Table 2.--Approximate Area of the Estuarine and Marine Critical Habitat
                       Units for the Gulf Sturgeon
------------------------------------------------------------------------
    Critical habitat unit--                         Kilometers
 estuarine and marine systems         State             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 designated 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 (rmi 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 (rmi 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.

[[Page 13391]]

    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 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., 2002). 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 designated 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; and 
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 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; and W. 
Slack, pers. comm. 2002). 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 (W. Slack, 
pers. comm. 2001; W. Granger, FWS, pers. comm. 2002; and F. Parauka, 
pers. comm. 2002) and juvenile, adult and subadult Gulf sturgeon have 
been documented on the Bogue Chitto River as far upstream as one mile 
north of Quinn Bridge (Mississippi State Highway 44), McComb, Pike 
County, Mississippi (W. Slack pers. comm. 2001; D. Oge, Louisiana 
Department of Environmental Quality, pers. comm. 2002; and F. Parauka, 
pers. comm. 2002). We, therefore, have designated as critical habitat 
the main stem of the Bogue Chitto River upstream of Quinn Bridge 
(Mississippi State Highway 44) to Mississippi State Highway 570 for 
ease of identification.

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 Bouie, Leaf, and Chickasawhay 
tributaries, and all of the Big Black Creek tributary. It includes the 
Bouie River main stem beginning on the southern-most road crossing of 
Interstate 59, 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; and 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, USM, pers. comm. 2001).
    Gulf sturgeon spawning on the Bouie River was confirmed via egg 
collection in 1999 (Slack et al., 1999; and Heise et al., 1999a). This 
is the only confirmed spawning area in the Pascagoula River drainage. 
Downstream, the Bouie 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 approximately 0.80 rkm (0.50 rmi) 
north of Glendale Road (Reynolds, 1993; and W. Slack, pers. comm. 
2002). Additional

[[Page 13392]]

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 included the 4.8 
rkm (3 rmi) of river reach upstream of the confirmed spawning grounds. 
For ease of identification, we have stopped on the southern-most road 
crossing of Interstate 59, where it crosses the Bouie River. Confirmed 
use for spawning and use as a summer holding area support the inclusion 
of the Bouie River as 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; and 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 critical habitat.
    Documented sightings of Gulf sturgeon using the Chickasawhay River 
(Miranda and Jackson, 1987; Reynolds, 1993; and 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 critical 
habitat for spawning, migration, and juvenile feeding. We have included 
the suitable spawning habitat located within 0.8 rkm (0.5 rmi) upstream 
of Mississippi State Road 512 and have extended the 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 size 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, 2002) and a 
reported larval sighting (N. Craft, Florida Department of Environmental 
Protection (FDEP), 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 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 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 et al. (1991) describe 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, 2002). 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, biologists working for the State of Alabama 
have observed young-of-the-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; and G. Morgan, Conecuh National Forest, pers. comm. 2001). 
Preliminary surveys located four potential summer resting

[[Page 13393]]

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 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 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 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; and Craft et al., 2001) and support its inclusion as 
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 0.8 rkm (0.5 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, 2002; and 
Hightower et al., in press). 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; and Hightower et al., in press). 
Suitable spawning and resting habitat, confirmed spawning, and young-
of-the-year and juvenile feeding (F. Parauka, pers. comm. 2001) support 
inclusion of the Pea River reach as 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). 
Biologists have identified suitable spawning habitat (limestone 
outcrops) periodically between 135 rkm (84 rmi) to the confluence of 
the West Fork Choctawhatchee River and East Fork Choctawhatchee River 
(224 rkm (139 rmi)) (Parauka and Giorgianni, 2000; H. Blalock-Herod, 
FWS, pers. comm. 2002; and Hightower et al., in press ). 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-the-year and juvenile feeding support 
the inclusion of the Choctawhatchee River main stem as 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 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; and FWS, 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; and 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, 2002). Suitable spawning and resting habitat, confirmed 
spawning, and young-of-the-year and juvenile feeding support inclusion 
of the Apalachicola River as critical habitat.

[[Page 13394]]

    The entire main stem of the Brothers River, a major tributary of 
the Apalachicola River, is also included as 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; and 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 Rivers).

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; and 
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 and Allen (2001) 
estimated the Suwannee River subpopulation at 5,500 individuals age 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 from 
the Suwannee River in April 1993. These were the first Gulf sturgeon 
eggs collected in the wild. Between 1993 and 1998, three spawning sites 
were confirmed with the collection of Gulf sturgeon eggs on artificial 
substrate samplers (Marchant and Shutters, 1996; and Sulak and 
Clugston, 1999). Young-of-the-year have been documented using the river 
between rkm 10 to the confluence with Roaring Creek at approximately 
rkm 285 (177 rmi) on the Suwannee River main stem (Carr et al., 1996a; 
Sulak and Clugston, 1999; K. Sulak, pers. comm. 2002; and J. Clugston, 
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, 
pers. comm. 2002; and M. Randall, pers. comm. 2002). Suitable spawning 
habitat has been identified upstream to Big Shoals (Huff, 1975; H. 
Blalock-Herod, 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 critical habitat. For ease of identification, 
the Suwannee River has been included in the unit upstream of Big Shoals 
0.8 rkm (0.5 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 
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; and 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 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. 
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. 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 swamp 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 (copyright))), 
(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 unit 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

[[Page 13395]]

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 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., 2002; and F. Parauka, pers. comm. 2002). 
Substrate in these areas range from sand to silt, all of which contain 
known Gulf sturgeon prey items (Menzel, 1971; Abele and Kim, 1986; and 
American Fisheries Society, 1989).
    The Rigolets is an 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., 2002). 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; Lake St. 
Catherine's are composed of silt and sand (Barrett, 1971). Incidental 
catches of Gulf sturgeon are documented from Lake St. Catherine and 
Sawmill Pass (Reynolds, 1993; and 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, we have included them with The Rigolets as 
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. (2002) did not relocate 
any of their sonic tagged adult Gulf sturgeon in Lake Pontchartrain, 
the eastern part of this lake is believed to be an important winter 
habitat for juveniles and subadults (H. Rogillio, pers. comm. 2002). 
Furthermore, we believe that Gulf sturgeon forage 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 greater sand content east of the causeway than west (Barrett, 
1976). Most records of Gulf sturgeon 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; and 
Morrow et al., 1996). While 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 portion of Lake 
Pontchartrain because we believe that the sturgeon utilizing this area 
are coming from 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 
(Barrett, 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 
have included 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, 2002). 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; and Rogillio et al., 2002). 
Pascagoula Bay is adjacent to the Mississippi Sound. Gulf sturgeon 
exiting the Pascagoula River move both east and west, with telemetry 
locations as far east as Dauphin Island and as far west as Cat Island 
and the entrance to Lake Pontchartrain, Louisiana (Ross et al., 2001a). 
Tagged Gulf sturgeon from the Pearl River subpopulation have been 
located between Cat Island, Ship Island, Horn Island, and east of Petit 
Bois Islands to the Alabama State line (Rogillio et al., 2002). 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; and Rogillio et 
al., 2002). 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

[[Page 13396]]

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 
waterbodies.
    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 
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, FDEP researchers 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; and 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, sturgeon are commonly found 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; and 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 and the east 
by 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 east to west approximately 57.9 km 
(35.9 mi) and varies 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 designated 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 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 (Fox et al., 2002; and F. Parauka, pers. comm. 2002). 
The Escambia and Yellow Rivers 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 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 of the unit 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., 2002; and F. Parauka, pers. comm. 
2002). Gulf sturgeon from the Choctawhatchee River subpopulation have 
been documented both east and west of Choctawhatchee Bay ( Fox et al., 
2002; and F. Parauka, pers. comm. 2002). During the winter of 2001-
2002, personnel from both 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 River, and 2 from the 
Yellow River) to identify winter feeding areas in the Gulf of Mexico. 
Due to a design flaw, errors in attachment, or sturgeon's ability to 
successfully shed the tags, the tags failed to report reliable data 
with only two exceptions. One of the Choctawhatchee River-tagged Gulf 
sturgeon was located in Hogtown Bayou in Choctawhatchee Bay; however, 
this provided no new information as we already knew that some adult 
Gulf sturgeon overwinter in this bayou. The other operating tag had 
been attached to a Yellow River Gulf sturgeon. Manual tracking in the 
vicinity of that Yellow River Gulf sturgeon led to the relocation of 
another tagged Gulf sturgeon. As a result, 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. These 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), where Gulf sturgeon are 
generally found, are all

[[Page 13397]]

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 and Kim, 1986; and American 
Fisheries Society, 1989). Based on movement patterns, it appears these 
Gulf sturgeon were feeding in the nearshore Gulf of Mexico on route to 
their natal rivers. Given this information, we have included the 
nearshore (up to 1 nm (1.9 km)) Gulf of Mexico waters in this unit 
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 
unit 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; FWS 
1998; and Parauka et al., in press). The Choctawhatchee Bay offers a 
feeding area for both subadults and adults (FWS, 1998; and Fox et al., 
2002). 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; FWS, 1998; and Parauka et al., 
in press). Most adult Gulf sturgeon were located in shallow water (2 to 
4 m (6.6 to 13.1 ft)) with predominantly (greater than 80 percent) 
sandy sediment (Fox et al., 2002). 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., 2002). We have included the deeper central 
portion of the Bay in unit 12 as critical habitat because the Gulf 
sturgeon are known to use the deeper bay waters for movement between 
the shoreline areas (Fox et al., 2002).

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 unit 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 of the unit 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.
    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, 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, 1980). The benthic habitat type most often found in 
Apalachicola Bay system is soft sediment, comprising approximately 70 
percent of the estuarine area (Livingston, 1980). 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; and 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; and 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; and Odenkirk, 1989). These areas are also used for 
accessing adjacent marine and estuarine feeding areas designated 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 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; and FWS, 
2000). On June 8, 1992, a commercial shrimp fisherman provided 
anecdotal information that he and other shrimp fishermen, had caught 
hundreds of Gulf sturgeon, with estimated weights generally between 
22.7 to 27.2 kg (50 to 60 lbs), 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 capture areas as being 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 area described by 
this fisherman, we are extending this 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 capture some of the shallow shoals extending south 
of the barrier islands, which we believe provide important foraging 
substrate.

[[Page 13398]]

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 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; and Edwards et al., in 
prep.). Tracking data indicate that 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 foraging 
(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 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 km \2\ (44.4 mi \2\ )) 
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 data and tag recaptures documented Gulf 
sturgeon using Gulf of Mexico waters as far out as 9 nm (16.7 km) 
(Sulak and Clugston, 1999; and 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 (greater than 6 
nm (11.1 km)) (Harris, pers. comm. 2002). Benthic samples taken where 
the fish were jumping 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 designation, therefore, includes waters 
out to 9 nm (16.7 km) to encompass these areas that we believe are 
essential for the conservation of the Gulf sturgeon. 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 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 are designating 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 critical habitat area (Reynolds, 1993; F. Chapman, pers. comm. 
2002; and Edwards et al., in prep.), records are relatively rare and 
encompass approximately 643.7 km (400 mi) of coastline (from Charlotte 
Harbor to Apalachicola Bay). While Gulf sturgeon may congregate in 
additional shallow water areas or migrate throughout the entire area, 
without additional information we cannot include additional areas 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 designated 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, John C. Stennis Space Center.
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.

[[Page 13399]]

 
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 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

Section 7 Consultation

    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 destruction or adverse 
modification of designated critical habitat. The regulatory effects of 
a critical habitat designation under the Act are triggered through the 
provisions of section 7, which applies to all 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 part 402. Individuals, organizations, 
States, local governments, and other non-Federal entities are affected 
by the designation of critical habitat if their actions occur on 
Federal lands, require Federal authorization, or involve Federal 
funding.

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 destroy or adversely modify its critical habitat, or 
both.
    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

    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.

Activities 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, to the maximum extent practicable. 
Activities that may destroy or adversely modify critical habitat for 
the Gulf sturgeon, or that may be affected by such designation, 
include, but are not limited to the following actions when authorized, 
funded or carried out by a Federal agency:
    (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 appreciably reduce the suitability of Gulf 
sturgeon riverine aggregation areas, also referred to as resting, 
holding, and staging areas, used by adult, subadult, and/or juveniles, 
believed necessary for minimizing energy expenditures and possibly for 
osmoregulatory functions, such as dredged material disposal upstream or 
directly within such areas; and other land uses that cause excessive 
sedimentation.
    (4) Actions that would alter the flow regime (the magnitude, 
frequency, duration, seasonality, and rate-of-change of fresh water 
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.
    (5) Actions that would alter water quality within a designated 
critical

[[Page 13400]]

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.
    (6) 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.
    (7) Actions that would obstruct migratory pathways within and 
between adjacent riverine, estuarine, and marine 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 
designation. The action agencies have included the USACE, other 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 mentioned in several biological opinions 
that were triggered by may-affect determinations for other listed 
species. To date, none of our opinions have 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.''
    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 only impact those private 
landowner activities that require Federal funding or permits. 
Designation of critical habitat is applicable to all activities 
approved, funded, or carried out by Federal agencies.

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 formalize here Gulf sturgeon jurisdictional responsibilities. In 
order to enhance consultation coordination efficiency for the action 
agencies, the following structure is adopted. The FWS will maintain 
primary responsibility for recovery actions in fresh water and the 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, EPA, the U.S. Coast Guard, and the Federal Emergency 
Management Agency. NMFS will consult with the DOD, USACE, 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. For any Federal projects that extend into the 
jurisdiction of both the Services, as defined above, FWS will be the 
lead consulting agency, and coordinate internally with NMFS. Each 
agency will conduct its own intra-agency consultations as necessary.

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider

[[Page 13401]]

the economic and other relevant impacts of designating a particular 
area as critical habitat. We may exclude areas from critical habitat 
upon a determination that the benefits of such exclusions outweigh the 
benefits of specifying such areas as critical habitat. We cannot 
exclude areas from critical habitat when the exclusion will result in 
the extinction of the species concerned.

Economic Impacts

    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic impact of the designation, in accordance with the 
recent decision in the N.M. Cattlegrowers Ass'n v. U.S. Fish and 
Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001). The draft analysis was 
made publically available for review on August 8, 2002. We accepted 
comments on the draft analysis until October 7, 2002.
    Our draft economic analysis evaluated the potential future section 
7 effects, including indirect effects, associated with designating 
critical habitat for the Gulf Sturgeon. The categories of potential 
costs considered in the analysis included the costs associated with: 
(1) Conducting section 7 consultations associated with the listing or 
with the designation of critical habitat, including incremental 
consultations and technical assistance; (2) modifications to projects, 
activities, or land uses resulting from the section 7 consultations; 
(3) indirect economic impacts on local industries and enterprises 
resulting from the physical changes to habitat areas that may be 
associated with project modifications (e.g., regional economic 
impacts). The most likely economic effects of critical habitat 
designation are on activities funded, authorized, or carried out by a 
Federal agency.
    Following the close of the comment period on the draft economic 
analysis, a final analysis was completed that incorporated public 
comments on the draft analysis and made other changes in the draft. 
Based on the draft and final economic analyses, and in consideration of 
all other relevant impacts of the designation, the Services are 
excluding under Section 4(b)(2) major shipping channels, as identified 
on standard navigation charts and marked by buoys, in the following 
three units:
    (1) Unit 2. Pascagoula River System in Forrest, Perry, Greene, 
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.--The 
major shipping channel of this unit is the southernmost 2.4 km (1.5 mi) 
of the Pascagoula River. The specific area excluded extends from the 
river mouth (rkm 0 (rmi 0)) to the river crossing with the CSX railroad 
bridge, approximately 2.4 km (1.5 mi) north of the river mouth. This 
channel is generally marked on the USACE's Alabama-Mississippi stream 
mileage tables with drainage areas (USACE 1985).
    (2) 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.--The 
major shipping channel of this unit is the GIWW and the approach 
channels to the Port of Pascagoula. Both channels are generally marked 
on USGS topographic maps and maps published for the public by the Corps 
of Engineers. The specific areas being excluded are marked by 
navigation buoys maintained by the U.S. Coast Guard.
    (3) Unit 9: Pensacola Bay System in Escambia and Santa Rosa 
Counties, Florida.--The major shipping channels of this unit are in the 
southern portion of Pensacola Bay and serve the Port of Pensacola and 
the Pensacola Naval Air Station. These channels are generally marked on 
USGS topographic maps and maps published for the public by the Corps of 
Engineers. The specific areas being excluded are marked by navigation 
buoys maintained by the U.S. Coast Guard.
    The Services have decided to exclude these areas after balancing 
the benefits of excluding against the benefits of including such areas 
as critical habitat. In the absence of other relevant factors, if 
excluding an area from a critical habitat designation will relieve a 
negative economic impact, and at the same time including the area fails 
to confer a counter-balancing positive benefit to the species, then the 
benefits of excluding the area from critical habitat outweigh the 
benefits of including it. The results of this type of evaluation will 
vary significantly depending on the landowners, geographic areas, and 
species involved.
(1) Benefits of Inclusion
    The benefits of including these areas in the critical habitat 
designation is low. While Units 2, 8, and 9 are essential to the 
conservation of the Gulf sturgeon, the navigation channels contained 
within each of these units constitutes a small proportion of the 
individual unit. In areas that are frequently maintained by dredging 
(e.g. entrance channels to the Port of Pascagoula), the primary 
constituent elements for sturgeon that are still present in the 
channels are unlikely to be appreciably diminished from their current 
baseline by Federal actions in the channels.
    In Unit 2, 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 the 
Pascagoula River (Ross et al., 2001a and b). The Pascagoula River 
Harbor is on the East Pascagoula River distributary, a small portion of 
this overall unit, but consistently used for migration.
    Unit 8 provides juvenile, subadult and adult feeding, resting, and 
passage habitat for Gulf sturgeon from the Pascagoula and the Pearl 
River subpopulations. 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 to 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, 2002). 
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; and Rogillio et al., 2002). Gulf 
sturgeon are frequently found at the mouths of the barrier island 
passes (Ross et al., 2001a) adjacent to channels used by recreational 
and commercial craft entering and exiting the Gulf of Mexico. The GIWW 
is a small band traversing this unit from east to west.
    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 Pensacola Bay system includes five interconnected bays, 
including Escambia Bay, Pensacola Bay, Blackwater Bay, East Bay, and 
the Santa Rosa Sound. 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 major shipping channel in this unit is the GIWW and 
extends to the Port of Pensacola and Pensacola Naval Air Station.
    The Pensacola Bay system provides winter feeding and migration 
habitat for

[[Page 13402]]

Gulf sturgeon from the Escambia River and Yellow River subpopulations. 
Sturgeon movement through this area is generally along the shoreline 
area of Pensacola Bay. Gulf sturgeon showed a preference for several 
areas in the bay, including Redfish Point, Fort Pickens, and Escribano 
Point, near Catfish Basin (FWS, 1998; and 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, sturgeon are commonly found 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; and Lorio, 2000).
    In sum, the Services believe that a critical habitat designation 
for the Gulf sturgeon would provide a relatively low level of 
additional regulatory conservation benefit to the species.
(2) Benefits of Exclusion
    A major economic impact identified in the draft economic analysis 
was on dredging projects of the USACE. USACE plans the location and 
timing of dredging projects to ensure that channel reliability is 
always maintained. Frequency of dredging varies widely, from almost 
annual maintenance dredging to once every ten or twenty years, 
depending on the level of use of the waterway for shipping and the 
natural rate of sediment deposition. The major navigation channels must 
be maintained to Congressionally authorized depths and widths to allow 
shippers to enter ports. Failure to maintain the navigation channels 
accordingly greatly affects shippers who may be forced to use smaller 
vessels, light load (i.e., remove shipped goods to reduce weight and 
therefore the depth of the barge), use alternative modes of transport, 
such as rail or truck transport, or travel on to another port. All of 
these alternatives increase the cost of transporting goods. In extreme 
cases, commercial facilities may close and economic activities may 
transfer to other locations.
    The major risks of dredging projects to sturgeon are entrainment in 
dredges, prevention of migratory passage through channels and inlets 
due to blockage by large dredges, elevated turbidity causing increased 
siltation on feeding or spawning areas, and possible removal of food 
prey. Numerous formal and informal consultations on dredging activities 
are anticipated in the proposed critical habitat units over the next 
ten years.
    Potential project modifications specific to dredging and disposal 
projects, and for which we have concerns regarding their potential 
implications, include:
    [sbull] Minimize extent of dredging activity. In past 
consultations, FWS has requested that proposed dredging projects be 
limited to proposed depths only. Less likely, USACE could avoid 
dredging in deeper portions of the channel for riverine dredging 
projects, limit dredging of navigation channels to the minimum 
dimensions necessary, avoid performing advanced maintenance activities, 
or use silt curtains to enclose dredging sites when dredging in shallow 
water. For hydraulic dredging, USACE may raise the cutter head above 
the bottom during pipeline clearing and keep it as close to the surface 
as practicable while water is being pumped from the pipeline.
    [sbull] Sequence dredging. For example, if a dredging project 
includes both a river mouth and a channel into a bay, USACE may arrange 
the project to dredge the estuary first and dredge the river second so 
that areas more sensitive to turbidity and hypoxia are dredged during a 
cooler time frame.
    [sbull] Dredging windows. USACE has expressed concern about the 
effect of dredging windows on its operations. In past informal 
consultations, dredging windows have been recommended to avoid 
entrainment in the dredge or the preclusion of movement past the dredge 
during migratory periods, since avoiding work during times when 
sturgeon are known to be in the direct vicinity of the project is the 
most effective way to avoid harm to the species. If USACE cannot avoid 
dredging within the time frames suggested in an informal consultation, 
USACE will likely need to initiate a formal consultation with the 
Services during which modifications to the project other than dredging 
windows would be considered.
    It is possible that critical habitat could influence the Services 
to be more likely to impose one or more of these measures to prevent 
habitat modification.
    If dredging windows and other measures are required in 
consultation, the present value of expected direct costs of 
implementation of section 7 for these activities that may affect the 
sturgeon or its habitat over the next ten years would exceed the 
projected $22.7 million cost of consultations on operation and 
maintenance of navigation projects set forth in the final economic 
analysis. This section 4(b)(2) analysis also considered the possibility 
that the greater costs projected in the draft economic analysis may be 
incurred. Forecast costs are associated with expected administrative 
requirements and project modifications that may be recommended by the 
Services during the consultation process. To the extent that project 
modifications due to a critical habitat designation may result in 
delays or a reduction in channel capacity, the secondary economic 
effects may be high.
(3) The Benefits of Exclusion Outweigh the Benefits of Inclusion
    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding major shipping channels as critical 
habitat outweigh the benefits of including them as critical habitat for 
the Gulf sturgeon. This conclusion is based on the following factors: 
The benefits of designating critical habitat in the major shipping 
channels of these units is low because the areal extent of the shipping 
channels is a very small proportion of the entire unit. In addition the 
frequently maintained portions of the major shipping channels are 
altered to an extent that any primary constituent elements for sturgeon 
that are still present in the channels are unlikely to be appreciably 
diminished from their current baseline by Federal actions in the 
channels. The benefits of excluding these areas may be high if critical 
habitat designation were to increase the frequency of modifications to 
dredging practices or result in delays in maintaining channel depth. 
Therefore, the Services believe that the benefits of exclusion outweigh 
the benefits of including these areas as critical habitat.
(4) Exclusions Within These Units Will Not Cause Extinction of the 
Species
    These exclusions will not cause the extinction of the Gulf 
sturgeon. Although the shipping channels may provide food resources 
needed in the winter months, other large areas of prey and corridors 
for migration are available in the remainder of the units to prevent 
the extinction of the species.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available, and 
to consider the economic

[[Page 13403]]

and other relevant impacts of designating a particular area as critical 
habitat. We may exclude areas from critical habitat upon a 
determination that the benefits of such exclusions outweigh the 
benefits of specifying such areas as critical habitat. We cannot 
exclude such areas from critical habitat when such exclusion will 
result in the extinction of the species.
    Following the publication of the proposed critical habitat 
designation, a draft economic analysis was conducted to estimate the 
potential economic effect of the proposed designation. The draft 
analysis was made publicly available for review on August 8, 2002. We 
accepted comments on the draft analysis until October 7, 2002. Our 
draft economic analysis evaluated potential future effects associated 
with the listing of the Gulf sturgeon as a threatened species under the 
Act, as well as any potential effect of the critical habitat 
designation above and beyond those regulatory and economic impacts 
associated with listing. The categories of potential costs considered 
in the analysis included the costs associated with (1) conducting 
section 7 consultations associated with the listing or with the 
critical habitat, including incremental consultations, reinitiated 
consultations, and technical assistance; (2) modifications to projects, 
activities, or land uses resulting from the section 7 consultations; 
(3) uncertainty and perceived impacts on markets resulting from the 
designation of critical habitat and (4) potential offsetting beneficial 
costs associated with critical habitat.
    The majority of consultations resulting from the critical habitat 
designation for Gulf sturgeon are likely to address dredging and 
sediment disposal activities to support navigation, shoreline 
stabilization, water quality standards, military actions, road and 
bridge construction, oil and gas leases in Federal waters and 
permitting of oil and gas pipelines. As described in the draft economic 
analysis, all areas included in the designated critical habitat are 
occupied, with the fish also occurring in areas not included in the 
critical habitat designation.
    Following the close of the comment period on the draft economic 
analysis, a final revision was completed which incorporated public 
comments on the draft analysis. Based on comments, the cost of 
consultations was revised. Subsequently, the revised economic analysis 
concluded that the designation may result in approximately $3,310,000 
to $4,953,000 per year in potential economic impact due to the total 
effects of critical habitat, including those effects resulting co-
extensively from listing the species. Given the uncertainty regarding 
the implementation of project modifications for predicted projects 
concerning dredging and disposal modifications, a probability of 
adoption ratio was used in the final economic analysis based on the 
rate that the Services recommended various modifications in past formal 
and informal consultations where the proposed action would have 
impacted the sturgeon as well as its habitat.
    Only those areas essential to the conservation of the Gulf sturgeon 
have been included in the critical habitat designation; the designation 
does not encompass the entire area currently occupied or utilized by 
the species, nor does it include any currently unoccupied areas. The 
economic analysis documents that the costs of including any particular 
unit range from $1,300 to $380,000 annually in administrative costs of 
consultation over 10 years (the low value represents the lowest per 
unit estimate of costs attributable solely to critical habitat 
designation and the high value represents the highest per unit 
estimates of costs attributable co-extensively with listing). Total co-
extensive administrative cost across all units over 10 years range 
between $705,600 and $2,348,600 per year. Project modification costs 
for this analysis could not be attributed to any one unit, given the 
nature of the projects. However, total co-extensive costs of project 
modifications across all units over 10 years are estimated to be 
$2,604,000 annually; if the approximate one-to-one ratio of total 
administrative costs to total project modification costs reflects the 
per unit ratio of these costs, then the highest upper-bound per unit 
estimate of critical habitat designation would be approximately 
$700,000 per year over 10 years. Sixty-five percent of the total upper-
bound costs estimated to be attributable to critical habitat 
designation are expected to consist of federal agency costs.

Required Determinations

Regulatory Planning and Review

    As required by Executive Order 12866, we have provided a copy of 
the rule, which describes the need for this action and how the 
designation meets that need, and the economic analysis, which assesses 
the costs and benefits of this critical habitat designation, to the 
Office of Management and Budget (OMB) for review. The OMB determined 
that this rule may raise novel legal or policy issues and found it to 
be a significant rule.

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

    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.
    SBREFA amended the Regulatory Flexibility Act (RFA) to require 
Federal agencies to provide a statement of the factual basis for 
certifying that a 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. We are hereby certifying that this 
rule designating critical habitat for the Gulf sturgeon will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale for this certification.
    Small entities include small organizations, such as independent 
non-profit organizations, 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 impacts to 
these small entities are significant, we consider 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, we consider the number of small

[[Page 13404]]

entities affected within particular types of economic activities (e.g., 
housing development, grazing, oil and gas production, timber 
harvesting, etc.). In estimating the numbers of small entities 
potentially affected, we also consider 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.
    The vast majority of the designated critical habitat for the Gulf 
sturgeon, with few exceptions, is public land involving river, stream, 
estuary, or marine habitat. Activities with Federal involvement that 
may require consultation regarding Gulf sturgeon and its critical 
habitat include: activities 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.
    As required under section 4(b)(2) of the Act, we conducted an 
analysis of the potential economic impacts of this critical habitat 
designation. In the draft analysis, we found that the future section 7 
consultations resulting from the listing of the Gulf sturgeon and the 
proposed designation of critical habitat could potentially impose total 
economic costs for consultations and modifications to projects to range 
between approximately $43.4 million to $57.2 million over the next 10-
year period. Public comment on the draft economic analysis led to a 
revision of third party cost estimates that would result from section 7 
consultations. The changes in cost estimates are discussed and 
reflected in the revised final Economic Analysis of Critical Habitat 
Designation for the Gulf Sturgeon (Industrial Economics, Inc. 2003), 
where we found that the future section 7 consultations resulting from 
the listing of the Gulf sturgeon and the proposed critical habitat 
could potentially impose total economic costs for consultations and 
modifications to projects in the range of between $33.1 million to 
$49.5 million over the next 10-year period.
    In considering whether this critical habitat designation would have 
a significant economic impact on a substantial number of small 
entities, we examined the total estimated section 7 costs calculated in 
earlier sections of this report, including those impacts that may be 
``attributable co-extensively''with the listing of the species. This 
results in a conservative estimate (i.e., more likely to overstate 
impacts than understate them), because it utilizes the upper bound 
impact estimate from the earlier analysis. Using this approach, the 
economic analysis estimated that fewer than 6 small entities per year, 
would experience significant economic impacts. We do not believe this 
constitutes a substantial number of small entities. Therefore, the 
Services are certifying that the designation of critical habitat for 
the Gulf sturgeon will not have a significant economic impact on a 
substantial number of small entities. Accordingly, a regulatory 
flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    OMB's Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. In the draft economic 
analysis and the final economic analysis, we determined that 
designation of critical habitat would not cause (a) any annual effect 
on the economy of $100 million or more, (b) any increases in costs or 
prices for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions, or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis 
(Industrial Economics, Inc., 2003) for a complete discussion of the 
effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' In order to ensure that Federal 
agencies ``appropriately weigh and consider the effects of the Federal 
government's regulations on the supply, distribution, and use of 
energy,'' the President has directed agencies to prepare and submit to 
the OMB's Office of Information and Regulatory Affairs a ``Statement of 
Energy Effects'' for their ``significant energy actions.'' The OMB has 
provided guidance for implementing this Executive Order that outlines 
nine outcomes that may constitute ``a significant adverse effect'' when 
compared with the regulatory action under consideration:
    (1) Reductions in crude oil supply in excess of 10,000 barrels per 
day;
    (2) Reductions in fuel production in excess of 4,000 barrels per 
day;
    (3) Reductions in coal production in excess of 5 million tons per 
year;
    (4) Reductions in natural gas production in excess of 25 million 
mcf;
    (5) Reductions in electricity production in excess of 1 billion 
kilowatts per year or in excess of 500 megawatts of installed capacity;
    (6) Increases in energy use required by the regulatory action that 
exceed the thresholds above;
    (7) Increases in the cost of energy production in excess of one 
percent;
    (8) Increases in the cost of energy distribution in excess of one 
percent; or
    (9) Other similarly adverse outcomes.
    There is one hydropower project located upstream of critical 
habitat Unit 6. Accordingly, we assessed the potential for a 
significant effect to energy supply, distribution, or use as relevant 
to this analysis in the final addendum to the economic analysis, 
reductions in electricity production in excess of 1 billion kilowatts 
per year or in excess of 500 megawatts of installed capacity.
    The Gulf region derives a very small portion of its overall power 
supply from hydropower. Electricity supply and capacity data are 
collected and reported by the North American Reliability Council 
(NERC). Of its ten regional councils, the Southeastern Electrical 
Reliability Council (SERC) is the most contiguous with areas 
potentially affected by critical habitat for the Gulf sturgeon. The 
geographic area covered by the Southern section of SERC includes most 
of Alabama and Georgia, southeastern Mississippi, and the Florida 
panhandle. Another section of SERC, Entergy, covers southwestern 
Mississippi, the Gulf coast Louisiana, and portions of other States. 
Peninsular Florida is not covered by SERC, but by the Florida 
Reliability Coordinating Council (FRCC). Peak summer demand reached 
43,736 megawatts for the Southern region and 25,747 megawatts for the 
Entergy region in 2001.
    Only one dam located upstream and adjacent to the critical habitat 
Unit 6 supplies hydropower. Located near the Florida-Georgia border in 
Chattahoochee, Florida, the Jim Woodruff Dam is one of 23 hydropower 
sites operated by the USACE that generate power. The electric power and 
energy generated at Jim Woodruff Dam is marketed by the Federal 
Southeastern Power Administration for the wholesale energy market. Of 
the total installed

[[Page 13405]]

capacity of 3,092 megawatts, the Jim Woodruff Dam represented 30 
megawatts, or less than one percent of Southeastern Power 
Administration market capacity during fiscal year 1999. In terms of 
actual volume marketed, the facility provided 205 gigawatt hours during 
fiscal year 1999, or 3.6 percent of the Southeastern Power 
Administration total. Based on data from 1995, USACE estimated total 
electricity capacity in the Apalachicola-Chattahoochee-Flint (ACF) 
Basin to be 6,657 megawatts. Of this total, 652 megawatts represent 
hydropower capacity. Compared to 2001 Southern region peak summer 
demand, hydropower units located in the ACF Basin contribute a small 
percentage of total regional electricity demand.
    In 2001, Florida had a summer peak demand of 38,285 megawatts out 
of a total summer peak capacity of 42,609 megawatts. Coal, natural gas, 
oil, and nuclear sources fuel most of the State's energy needs. 
Electricity derived from hydropower from the Jim Woodruff Dam can 
account for only a small fraction of Florida's statewide capacity.
    The maximum installed capacity for Jim Woodruff Dam is 30 MW 
(30,000 KW). Therefore, even when viewed in the context of a worst-case 
scenario, in which implementation of section 7 of the Act results in 
significant operational changes, however unlikely, to this hydropower 
project, the total capacity is 30 MW (30,000 KW) of hydroelectricity, 
so the impact on these hydropower facilities could not exceed the 500 
MW (500,000 KW) threshold.
    Therefore, even in the worst case scenario, implementation of 
section 7 for the Gulf sturgeon will not result in a ``reduction in 
electricity production in excess of 500 megawatts of installed 
capacity'' or an ``increase in the cost of energy production in excess 
of one percent.'' Consequently, this rule will not have a ``significant 
adverse effect'' on the supply, distribution, or use of energy, and no 
``Statement of Energy Effects'' is required.

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.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that Federal agencies 
funding, permitting, or authorizing other activities must ensure that 
their actions will not adversely affect the critical habitat.
    (b) For the reasons described in the economic analysis and this 
final rule, this rule will not produce a Federal mandate on State, 
local, or tribal governments of $100 million or greater in any year. 
The designation of critical habitat imposes no obligations on State or 
local governments. Therefore, it is not a ``significant regulatory 
action''' under the Unfunded Mandates Reform Act.

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 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 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 of the Department of the Interior 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 that are essential for the conservation of the Gulf 
sturgeon. We have made every effort to ensure that the final 
determination contains no drafting errors, provides clear standards, 
simplifies procedures, reduces burdens, and is clearly written, such 
that the risk of litigation is minimized.

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

    This 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 
permits under the Act are covered by an existing OMB approval, and are 
assigned clearance No. 1018-0094, with an expiration date of July 31, 
2004. Detailed information for Endangered Species Act documentation 
appears at 50 CFR 17. An agency 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

    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 in connection 
with regulations adopted under 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).
    The proposed rule stated that NMFS had determined that this action 
is categorically excluded from NEPA requirements. However, NMFS had not 
at that time finalized its NEPA analysis for this rule. In response to 
comments received on the proposed rule (see comment 16), and based on 
additional research and deliberation, NMFS has concluded that the FWS 
position is

[[Page 13406]]

correct, and that NEPA does not apply to designation of critical 
habitat under the Act.

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 designated on Tribal lands.

References Cited

    A list of references is available upon request (see ADDRESSES.)

Authors

    The primary authors of this document are Patty Kelly, FWS, (850/
769-0552, extension 228); and Stephania Bolden 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.

Regulation Promulgation

    For the reasons outlined in the preamble, we 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     Special
                                                            Historic Range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
             FISHES:
 
                                                                      * * * * * * *
Sturgeon, Gulf...................  Acipenser oxyrinchus  U.S.A. (AL, FL, GA,  Entire.............  T                       444    17.95(e),     17.44(v)
                                    (=oxyrhynchus)        LA, MS).                                                                  226.214
                                    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 and 
substrates 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) Riverine aggregation areas, also referred to as resting, 
holding, and staging areas, used by adult, subadult, and/or juveniles, 
generally, but not always, located in holes below normal riverbed 
depths, believed necessary for minimizing energy expenditures during 
fresh water residency and possibly for osmoregulatory functions;
    (iv) A flow regime (i.e,. the magnitude, frequency, duration, 
seasonality, and rate-of-change of fresh water 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, egg sheltering, resting, and larvae staging;
    (v) 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;
    (vi) Sediment quality, including texture and other chemical 
characteristics, necessary for normal behavior, growth, and viability 
of all life stages; and
    (vii) Safe and unobstructed migratory pathways necessary for 
passage within and between riverine, estuarine, and marine habitats 
(e.g. a river unobstructed by any permanent structure, or a dammed 
river that still allows for passage).
    (3) Gulf sturgeon is under the joint jurisdiction of the U.S. Fish 
and Wildlife Service (FWS) and National Marine Fisheries Service 
(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

[[Page 13407]]

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 U.S. Coast 
Guard, and the Federal Emergency Management Agency. NMFS will consult 
with the Department of Defense, U.S. Army Corps of Engineers, Minerals 
Management Service 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 with internal coordination with NMFS. Each 
agency will conduct its own intra-agency consultations as necessary.
    (4) 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.
    (5) 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 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (6) 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 Bouie, Leaf, and Chickasawhay 
tributaries, and all of the Big Black Creek tributary. It includes the 
Bouie River main stem beginning on the southern-most road crossing of 
Interstate 59, 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) Major shipping channels in this unit are excluded under 
section 4(b)(2) of the Act.
    (iii) Maps of Unit 2 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13417]]

    (7) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (8) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13426]]

    (9) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13431]]

    (10) 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:
BILLING CODE 3510-22-P

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[[Page 13433]]


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BILLING CODE 3510-22-C

[[Page 13434]]

    (11) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (12) 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. 
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. 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 kilometers (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 mean (average) high water (MHW) line on each shoreline of the 
included water bodies or the entrance to rivers, bayous, and creeks.
    (ii) Major shipping channels in this unit, as identified on 
standard navigation charts and marked by buoys, are excluded under 
section 4(b)(2) of the Act.
    (iii) Maps of Unit 8 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (13) 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) Major shipping channels in this unit, as identified on 
standard navigation charts and marked by buoys, are excluded under 
section 4(b)(2) of the Act.
    (iii) A Map of Unit 9 follows:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13444]]

    (14) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13446]]

    (15) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13448]]

    (16) 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:

[[Page 13449]]

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BILLING CODE 3510-22-P
    (17) Unit 13: Apalachicola Bay in Gulf and Franklin County, 
Florida.
    (i) Unit 13 includes the main body of Apalachicola Bay and its 
adjacent

[[Page 13450]]

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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

[[Page 13452]]

    (18) 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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (19)(i) The river reaches within Units 1 to 7 as critical habitat 
lie within the ordinary high water line. As defined in 33 CFR 32.911, 
the ordinary high water

[[Page 13454]]

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 (rmi 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 (rmi 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.
    (20) 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 50 CFR 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 National Marine Fisheries Service (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 U.S. Coast 
Guard, and the Federal Emergency Management Agency. NMFS will consult 
with the Department of Defense, U.S. Army Corps of Engineers, Minerals 
Management Service 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 with internal coordination with NMFS. Each 
agency will conduct its own intra-agency consultations as necessary.
    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: abundant 
prey items within riverine habitats for larval and juvenile life 
stages, and within estuarine and marine habitats and substrates for 
juvenile, subadult, and adult life stages; 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; riverine aggregation areas, 
also referred to as resting, holding, and staging areas, used by adult, 
subadult, and/or juveniles, generally, but not always, located in holes 
below normal riverbed depths, believed necessary for minimizing energy 
expenditures during fresh water residency and possibly for 
osmoregulatory functions; a flow regime (i.e., the magnitude, 
frequency, duration, seasonality, and rate-of-change of fresh water 
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; 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; sediment quality, including texture and other 
chemical characteristics, necessary for normal behavior, growth, and 
viability of all life stages; and safe and unobstructed migratory 
pathways necessary for passage within and between riverine, estuarine, 
and marine habitats (e.g. a river unobstructed by any permanent 
structure, or a dammed river that still allows for passage).
    The river reaches within Units 1 to 7 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 (rmi 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 (rmi 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

[[Page 13455]]

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.
    Critical habitat units are depicted for Louisiana, Mississippi, 
Alabama and Florida on the maps below. The textual unit descriptions 
below are definitive sources for determining the critical habitat 
boundaries. General location maps by unit are provided for general 
guidance purposes only, and not as a definitive source for determining 
critical habitat boundaries.
    (a) 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.
    (1) 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 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.
    (2) Maps of Unit 1 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (b) Unit 2: Pascagoula River System in Forrest, Perry, Greene, 
George, Jackson, Clarke, Jones, and Wayne Counties, Mississippi.
    (1) Unit 2 includes all of the Pascagoula River main stem and its 
distributaries, portions of the Bouie, Leaf, and Chickasawhay 
tributaries, and all of the Big Black Creek tributary. It includes the 
Bouie River main stem beginning on the southern-most road crossing of 
Interstate 59, 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.
    (2) Major shipping channels in this unit are excluded under section 
4(b)(2) of the Act.
    (3) Maps of Unit 2 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (c) Unit 3: Escambia River System in Santa Rosa and Escambia 
Counties, Florida and Escambia, Conecuh, and Covington Counties, 
Alabama.
    (1) 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.
    (2) Maps of Unit 3 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (d) Unit 4: Yellow River System in Santa Rosa and Okaloosa 
Counties, Florida and Covington County, Alabama.
    (1) 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.
    (2) Maps of Unit 4 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (e) Unit 5: Choctawhatchee River System in Holmes, Washington, and 
Walton Counties, Florida and Dale, Coffee, Geneva, and Houston 
Counties, Alabama.
    (1) 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.
    (2) Maps of Unit 5 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (f) Unit 6: Apalachicola River System in Franklin, Gulf, Liberty, 
Calhoun, Jackson, and Gadsen Counties, Florida.
    (1) 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.
    (2) Maps of Unit 6 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (g) Unit 7: Suwannee River System in Hamilton, Suwannee, Madison, 
Lafayette, Gilchrist, Levy, Dixie, and Columbia Counties, Florida.
    (1) 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.
    (2) Maps of Unit 7 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (h) 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.
    (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. 
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. Designated 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 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) Major shipping channels in this unit, as identified on standard 
navigation charts and marked by buoys, are excluded under section 
4(b)(2) of the Act.
    (3) Maps of Unit 8 follow:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (i) 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) Major shipping channels in this unit, as identified on standard 
navigation charts and marked by buoys, are excluded under section 
4(b)(2) of the Act.
    (3) A Map of Unit 9 follows:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (j) Unit 10: Santa Rosa Sound in Escambia, Santa Rosa, and Okaloosa 
Counties, Florida.
    (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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (k) Unit 11: Florida Nearshore Gulf of Mexico Unit in Escambia, 
Santa Rosa, Okaloosa, Walton, Bay, and Gulf Counties, Florida.

[[Page 13489]]

    (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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (l) Unit 12: Choctawhatchee Bay in Okaloosa and Walton Counties, 
Florida.
    (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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C

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    (m) Unit 13: Apalachicola Bay in Gulf and Franklin County, Florida.
    (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:
BILLING CODE 3510-22-P

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BILLING CODE 3510-22-C
    (n) Unit 14: Suwannee Sound in Dixie and Levy Counties, Florida.
    (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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BILLING CODE 3510-22-C


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    Dated: February 27, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.

    Dated: February 28, 2003.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 03-5208 Filed 3-18-03; 8:45 am]
BILLING CODE 3510-22-P