[Federal Register Volume 74, Number 104 (Tuesday, June 2, 2009)]
[Rules and Regulations]
[Pages 26488-26510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12517]
[[Page 26487]]
-----------------------------------------------------------------------
Part II
Department of the Interior
-----------------------------------------------------------------------
Fish and Wildlife Service
50 CFR Part 17
-----------------------------------------------------------------------
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi); Final Rule
Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules
and Regulations
[[Page 26488]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R4-ES-2008-0058; 92210-1117-0000-FY08-B4]
RIN 1018-AV51
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for the Alabama sturgeon (Scaphirhynchus suttkusi)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 524 kilometers (326 miles) of river fall within the
boundaries of the critical habitat designation. The critical habitat
includes portions of the Alabama and Cahaba Rivers in Autauga, Baldwin,
Bibb, Clarke, Dallas, Lowndes, Monroe, Perry, and Wilcox Counties, in
Alabama.
DATES: This rule becomes effective on July 2, 2009.
ADDRESSES: This final rule and the associated final economic analysis
are available on the Internet at http://www.regulations.gov. Supporting
documentation we used in preparing this final rule is available for
public inspection, by appointment, during normal business hours, at the
U.S. Fish and Wildlife Service, Alabama Ecological Services Field
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251/441-5858;
facsimile 251/441-6222.
FOR FURTHER INFORMATION CONTACT: Jeff Powell, Aquatic Species
Biologist, U.S. Fish and Wildlife Service, Alabama Ecological Services
Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251/441-
5858; facsimile 251/441-6222. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800/877-8339.
SUPPLEMENTARY INFORMATION:
Background
In this final rule, we intend to discuss only those topics directly
relevant to the distribution of the Alabama sturgeon and the
designation of its critical habitat. For more information on the
species, refer to the final and proposed listing rules published in the
Federal Register on May 5, 2000 (65 FR 26438), and on March 26, 1999
(64 FR 14676), respectively.
Sturgeon is the common name used for large, bony-plated, primitive
fishes in the family Acipenseridae which typically grow slowly and
mature late in life. The Alabama sturgeon (Scaphirhynchus suttkusi) is
the smallest of all the North American sturgeons, typically weighing
only 1 to 2 kilograms (2 to 4 pounds) at maturity. The head is broad
and flattened shovel-like at the snout, with a tubular and protrusive
mouth. As with all sturgeon species, there are four barbels (whisker-
like appendages) located on the bottom of the snout in front of the
mouth that are used to locate prey. Bony plates called scutes line the
body in five rows, one on the back and two each on the middle and lower
sides. Bony plates separated by sutures also cover the head. The body
narrows abruptly to the rear-forming a narrow stalk between the body
and tail. The upper lobe of the tail fin is elongated and ends in a
long filament. Coloration of the upper body is light tan to golden
yellow, with a creamy white belly. Sturgeon are long-lived fishes.
Although the life span of the Alabama sturgeon in the wild is unknown,
Burke and Ramsey (1985) provided estimates on three individuals that
ranged from 2 to 10 years of age.
The Alabama sturgeon is endemic to rivers of the Mobile River Basin
below the Fall Line (inland boundary of the Coastal Plain) (Mettee et
al. 1996, p. 83; Boschung and Mayden 2004, p. 109). Its current range
includes the Alabama River from R.F. Henry Lock and Dam downstream to
the confluence of the Tombigbee River. The species is also known to
survive in the Cahaba River. For information on range of the species,
see the Criteria Used To Identify Critical Habitat section of this
rule.
Despite extensive and intensive efforts in the decade prior to its
listing, only eight Alabama sturgeon were captured, or reported
captured and released. These fish were collected from several locations
in the Alabama River between Millers Ferry Lock and Dam and its
confluence with the Tombigbee River (Rider and Hartfield 2007, p. 490).
Since the 2000 publication of the final rule listing the species under
the Act, two Alabama sturgeon have been captured or reported captured.
One of these was captured, videotaped, and released by a fisherman in
the lower Cahaba River in July 2000 shortly after publication of the
final rule. The most recent capture was an individual collected from
the Alabama River below Claiborne Lock and Dam on April 3, 2007, by the
Alabama Department of Conservation and Natural Resources (ADCNR). This
fish was implanted with a sonic tag and released on April 17, 2007, at
the location where it was captured.
Flows in the Alabama River are heavily influenced by upstream
releases from Alabama Power Company and U.S. Army Corps of Engineers
(USACE) hydropower projects, and riverine habitats are fragmented by
Claiborne and Millers Ferry Locks and Dams. This 386-kilometer (240-
mile) stretch of the Alabama River, along with the lower Cahaba River,
represents the last remaining viable habitat for the sturgeon.
Previous Federal Actions
On May 5, 2000, we listed the Alabama sturgeon as endangered under
the Act (65 FR 26438). In that final listing rule, we determined that
designation of critical habitat was prudent but that critical habitat
was not determinable, due to the lack of information on the sturgeon's
biological and habitat needs.
Following our listing decision, the Alabama-Tombigbee Rivers
Coalition (Coalition) brought suit in the United States District Court
for the Northern District of Alabama under the citizen-suit provision
of the Act and the judicial review provisions of the Administrative
Procedure Act (5 U.S.C. 551 et seq.), alleging several defects in the
listing process. The District Court dismissed the Coalition's lawsuit
for lack of standing, but on appeal, the U.S. Court of Appeals for the
Eleventh Circuit reversed the District Court's decision, concluding
that the Coalition did have standing to challenge the listing decision.
On remand, the District Court granted the United States' motion for
summary judgment but ordered us to issue both a proposed and a final
rule designating critical habitat by May 14, 2006, and November 14,
2006, respectively. Alabama-Tombigbee Rivers Coalition et al. v. Norton
et al., No. CV-01-0194-VEH (Final Order, Nov. 14, 2005). The Coalition
appealed and the District Court stayed the judgment pending review by
the Eleventh Circuit. Under the direction of the District Court, we
would have 2 years from the time of the Eleventh Circuit's decision to
complete the designation of critical habitat.
On February 8, 2007, the Eleventh Circuit affirmed the decision of
the District Court, finding among other things that vacating the
listing decision was not the proper remedy for failure to designate
critical habitat. Alabama-Tombigbee Rivers Coalition et al. v.
Kempthorne et al., 477 F.3d 1250 (11th
[[Page 26489]]
Cir. 2007). On May 16, 2007, the Eleventh Circuit issued its judgment
as a mandate, thus lifting the stay imposed by the District Court and
requiring us to issue a prudency determination and, if prudent, a
proposed rule designating critical habitat within 1 year (May 16,
2008), and a final rule designating critical habitat within 1 year
after that (May 16, 2009). The Coalition sought Supreme Court review of
the Eleventh Circuit's decision; that request was denied on January 7,
2008. See Alabama-Tombigbee Rivers Coalition et al. v. Kempthorne et
al., 128 S. Ct. 877 (2008).
We published the proposed designation of critical habitat for the
Alabama sturgeon in the Federal Register on May 27, 2008 (73 FR 30361).
That proposal had a 60-day comment period, ending July 28, 2008. On
December 30, 2008, we announced the opening of a public comment period
and the scheduling of a public hearing on the proposed revised
designation of critical habitat for the Alabama sturgeon (73 FR 79770).
We also announced the availability for public comment of a draft
Economic Analysis (DEA) and an amended required determinations section
of the proposal. In addition, we sought comment on our proposal to
change the first primary constituent element (PCE) from its original
description because we had determined that the original wording failed
to indicate that the flow needs of the species are relative to the
season of the year. The comment period was opened for 30 days from
December 30, 2008, to January 29, 2008. We then published a notice on
January 28, 2009 (FR 74 4912), extending the comment period to allow
all interested parties an additional opportunity to comment after the
public hearing that was also held on January 28, 2009. This comment
period closed on February 9, 2009.
For more information on previous Federal actions or for more
information on the endangered Alabama sturgeon or its habitat, refer to
our proposed and final listing rules published in the Federal Register
on March 26, 1999 (64 FR 14676), and on May 5, 2000 (65 FR 26438),
respectively, or request copies of them from the Alabama Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT). We are
designating critical habitat in accordance with section 4(b)(2) of the
Act.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Alabama sturgeon during two
comment periods. The first comment period associated with the
publication of the proposed rule (73 FR 30361) opened on May 27, 2008,
and closed on July 28, 2008. We also requested comments on the proposed
critical habitat designation and associated draft economic analysis
during a comment period that opened December 30, 2008, was extended on
January 28, 2009, and closed on February 9, 2009. We received two
requests for a public hearing. We held a public hearing on January 28,
2009. We also contacted appropriate Federal, State, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule and draft economic analysis during
these comment periods.
During the first comment period, we received 12 comment letters
directly addressing the proposed critical habitat designation. During
the second comment period, we received 22 comment letters addressing
the proposed critical habitat designation or the draft economic
analysis. During the January 28, 2009, public hearing, 11 individuals
or organizations made comments on the designation. All substantive
information provided during comment periods has either been
incorporated directly into this final determination or addressed below.
Comments received were grouped into four general issues specifically
relating to the proposed critical habitat designation for Alabama
sturgeon and are addressed in the following summary and incorporated
into the final rule as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise that includes familiarity with
the species, the geographic region in which the species occurs, and
conservation biology principles. We received responses from all three
of the peer reviewers.
We reviewed all comments received from the peer reviewers for
substantive issues and new information regarding critical habitat for
the Alabama sturgeon. The peer reviewers generally concurred with our
methods and conclusions and provided additional information,
clarifications, and suggestions to improve the final critical habitat
rule. Some reviewers suggested minor editorial changes. These have been
incorporated into the final rule as appropriate. Specific peer reviewer
comments are addressed in the following summary and are also
incorporated into the final rule as appropriate.
(1) Comment: One reviewer mentioned that in the rule we state the
life span of the Alabama sturgeon is unknown, yet we then estimate
individuals could live from 12 to 15 years, possibly longer.
Our Response: Although the life span of the Alabama sturgeon in the
wild is unknown, Burke and Ramsey (1985) provided estimates on three
individuals that ranged from 2 years to 10 years of age. In general,
all sturgeon species are long-lived species, some may live longer than
15 years.
(2) Comment: The reviewer understands that the critical habitat
proposal must be based on the known range of the species at the time it
was listed as ``endangered'', but suggests that it might be prudent to
expand the section to match the species historical range.
Our Response: According to section 3 of the Act, critical habitat
includes those areas that are occupied at the time of listing that
contain the physical and biological features necessary for the
conservation of the species. Areas not occupied at the time of listing
can be included only if it is determined that they are essential to
conservation of the species and that including only areas occupied at
the time of listing in critical habitat may not be adequate to conserve
the species. Based on our best available information (collection
records and supporting PCEs), we have determined that such unoccupied
areas are not essential to the conservation of the species.
(3) Comment: Would habitat descriptions from recent collections of
larval and juvenile pallid and shovelnose sturgeon in the Mississippi
River be of use in trying to define the preferred habitats of larval
and juvenile Alabama sturgeon in the Alabama River?
Our Response: Yes. We considered all recently published information
on these topics in the rule.
(4) Comment: One reviewer suggests that there has been a gradual
decline in the Alabama River discharge recently. They referenced the
continued lowering of an industry's intake pipes to account for the
river's decreasing stage.
Our Response: This is likely the result of the drought over the
last two years, or, an increase in upstream withdrawals. We recommend
referring the issue of lowered industry intake pipes to the Alabama
Office of Water Resources.
(5) Comment: One reviewer noted that the sonic-tagged Alabama
sturgeon was
[[Page 26490]]
released on April 17, 2007, not May 2007.
Our Response: We appreciate the correction. We have corrected this
in the final rule.
(6) Comment: One reviewer stated that they received a credible
report from an angler that caught an Alabama sturgeon below R.F. Henry
Lock and Dam on April 11, 2008.
Our Response: This report was considered in the rule.
(7) Comment: One reviewer stressed the importance of river
connectivity. The reviewer then stated the primary reason the species
is endangered is habitat fragmentation caused by large dams on the
Alabama River, and that fish bypass or fish passage opportunities
should be explored further.
Our Response: Habitat fragmentation was one of the primary reasons
for listing the species, and we will continue to work with our partners
to address fish passage in the Alabama River.
(8) Comment: One reviewer suggests that higher flows from R.F.
Henry could potentially attract Alabama sturgeon, especially in the
winter and spring when the species migrates upstream.
Our Response: The comment is noted and we will continue to work
with our partners to explore this possibility.
(9) Comment: One reviewer agrees that the pallid and shovelnose
sturgeons are acceptable surrogates for the Alabama sturgeon; the
reviewer also suggests that sturgeon in the genera Pseudoscaphirhynchus
and Acipenser also have similar life histories that could be applied to
the Alabama sturgeon. This includes information on temperature and
dissolved oxygen preferences, migration patterns, reproduction, age and
growth, habitat preferences, and diet.
Our Response: In the proposed rule, we stated that we would utilize
information on the Alabama sturgeon's closest two relatives, the pallid
and shovelnose sturgeon. However, there are still considerable data
gaps that could be filled by other sturgeon species. In this final
rule, we use information resulting from research on other sturgeon
species in the background sections where appropriate.
(10) Comment: One reviewer suggests that ``the distance of free-
flowing habitat currently available is likely detrimental to the
Alabama sturgeon, that is, there is likely NOT enough free-flowing
habitat for larval development in the reservoirs above Claiborne and
Millers Ferry locks and dams. The designation of critical habitat as
outlined in the proposed rule and the revised proposed rule is
necessary to protect the last remaining habitat for the Alabama
sturgeon, but improvements in riverine habitat MUST be made in the
Alabama River for migrating adults and drifting larvae if the species
is to survive and eventually recover.''
Our Response: While we designated areas meeting the definition of
critical habitat, the area designated is essentially the best remaining
habitat available for the species. We recognize the need to continue to
improve conditions related to the distance of free-flowing habitat
within designated critical habitat and elsewhere in the rivers (i.e.,
fish passage) and continue to work with our partners to do so.
(11) Comment: One reviewer suggests that we spend more time
discussing the potentially lethal effects of low dissolved oxygen
levels. He states that levels of 3 milligrams per liter (mg/L) (3 parts
per million (ppm)) and water temperatures of 22-26[deg] Celsius (C)
(72-79[deg] Fahrenheit (F)) appeared to be lethal for juvenile Atlantic
and shortnose sturgeons. Allowing a minimum level of 4 mg/L (4 ppm) in
the Alabama River may be very close to a lethal level for the Alabama
sturgeon.
Our Response: We have used the best available science to determine
the water quality needs of the Alabama sturgeon. We have reviewed the
information in the proposed rule and determined that clarification of
the fifth PCE was required to more clearly state that situations
involving dissolved oxygen of less than 5 mg/L (5 ppm) would not be the
norm within the river. We have clarified the fifth PCE to state,
``dissolved oxygen levels shall not be less than 5 mg/L (5 ppm); except
under extreme conditions due to natural cause or downstream of existing
hydroelectric impoundments, where it can range from 5 mg/L to 4 mg/L (5
ppm to 4 ppm), provided that the water quality is favorable in all
other parameters.''
Comments From States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.''
Comments received from the State regarding the proposal to designate
critical habitat for the Alabama sturgeon are addressed below.
During the first comment period, we received comments from both the
States of Georgia and Alabama disagreeing with the inclusion of 131.4
cubic meters per second (cms) (4,640 cubic feet per second (cfs)).
Following the revision, both States agreed with the first PCE as it
appears in the final rule.
(12) Comment: The State of Georgia recommends that the Service
engage in a NEPA analysis in order to fully address the impact of this
rule.
Our Response: It is our position that, outside the jurisdiction of
the United States Court of Appeals for the Tenth Circuit, we do not
need to prepare environmental analyses as defined by NEPA (42 U.S.C.
4321 et seq.) in connection with designating critical habitat under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244). This
assertion was upheld by the United States Court of Appeals for the
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995),
cert. denied 516 U.S. 1042 (1996)).
(13) Comment: The State of Georgia requested that the lateral
extent of the proposed critical habitat should be clarified, and
identification of activities that may cause stages in the Alabama and
Cahaba Rivers to decline below the ``ordinary high water mark.''
Our Response: For the purpose of this rule, we have applied the
definition for ``ordinary high water mark'' found at 33 CFR 329.11 as
``the line on the shore established by the fluctuations of water and
indicated by physical characteristics such as clear, natural line
impressed on the bank; shelving; changes in the character of the soil;
destruction of terrestrial vegetation; the presence of litter and
debris; or other appropriate means that consider the characteristics of
the surrounding areas.'' It is our position that the ``ordinary high
water mark'' does not imply that consultation is required every time
the river stage falls below that point. As stated in the ``Application
of the ``Adverse Modification'' Standard'' section, activities that
cause declines in flow, resulting in a decline in river stage, will be
evaluated on a case by case basis. Activities that may cause stages to
decline include, but are not limited to, drought conditions and
excessive water withdrawals.
(14) Comment: The State of Alabama noted that they are committed to
continuing to work with the Service, USACE, and other agencies to
develop a drought operations plan (Alabama Drought Operations
Procedure--ADROP) for the Alabama River.
Our Response: We appreciate the proactive steps Alabama has taken
to begin development of a drought operations plan for the Alabama
River. We believe this is an important step to ensuring all
stakeholders fully understand the minimum flow requirements that may be
imposed during future drought events.
(15) Comment: The Alabama Governor's Office stated that any flow
[[Page 26491]]
requirement for the designated critical habitat needs to be flexible
enough to realistically deal with drought conditions.
Our Response: We appreciate the Office of the Governor's concern
with this matter. We will continue to work with all stakeholders and
regulatory agencies to the best of our ability to ensure that this will
happen. We also will continue working with the State, Industry, and the
USACE to finalize a drought operations plan for the Alabama-Coosa-
Tallapoosa (ACT) Basin that has an Adaptive Management Approach.
Public Comments
(16) Comment: One commenter questioned why is it going to take a
year to complete the designation.
Our Response: On May 16, 2007, the Eleventh Circuit issued its
judgment as a mandate, requiring the Service to issue a prudency
determination and, if prudent, a proposed rule designating critical
habitat within one year (May 16, 2008), and a final rule designating
critical habitat within one year after that (May 16, 2009). Alabama-
Tombigbee Rivers Coalition et al. v. Kempthorne et al., 477 F.3d 1250
(11th Cir. 2007). We needed all of the time allowed by the court to
review the best scientific information about the species, allow for
public participation in the process, conduct an economic analysis,
reviewed comments, and coordinate with stakeholders on the designation.
(17) Comment: One commenter clearly voiced his objection to this
designation, stating that it is, ``a waste of time for good people,
blowing taxpayers' money and unacceptable Federal interference with
citizen activity and economic growth.''
Our Response: This action was court-ordered and non-discretionary.
On May 16, 2007, the Eleventh Circuit issued its judgment as a mandate,
requiring the Service to issue a prudency determination and, if
prudent, a proposed rule designating critical habitat within one year
(May 16, 2008), and a final rule designating critical habitat within
one year after that (May 16, 2009). Alabama-Tombigbee Rivers Coalition
et al. v. Kempthorne et al., 477 F.3d 1250 (11th Cir. 2007).
(18) Comment: One commenter states that, ``the damage to the
Alabama River and the Alabama Sturgeon were done without intention, to
disregard further damage to Alabama ecosystems would be an ignorant
disregard for current environmental science. The building of Claiborne
Lock and Dam, and the subsequent disruption of the Alabama River
ecosystem, has had negligible economic benefit in Alabama, but
protection of the remaining wild places we have will have positive
effects for tourism and environmental quality.''
Our Response: Comment noted.
(19) Comment: The Birmingham Audubon Society fully supports the
designation and also states that the economic impact of this
designation is not likely to be a serious burden.
Our Response: Comment noted.
(20) Comment: One commenter stated the USACE's locks and dams on
the Alabama River are not meeting their intended purpose (approximately
3 boats per month use the locks) and are a waste of Federal dollars.
The commenter then states ``why not allow these poor counties where
this waterway goes through--give them the one to two million dollars it
takes to maintain these locks. Let them put that into economic
development commissions for the counties and let them decide how to
develop their own economy.''
Our Response: Comment noted.
(21) Comment: One commenter recommended that the Service engage in
a NEPA analysis in order to fully address the impact of this rule.
Our Response: See response under Comment (14).
(22) Comment: The Cahaba River Society (CRS) fully supports the
designation. They recommend extending the designation an additional 25
kilometers (km) (16 miles (mi)) of the Cahaba River; upstream to the
Cahaba National Wildlife Refuge, as well as the Alabama River above
R.F. Henry Lock and Dam, up the Coosa River to Jordan Dam, and up the
Tallapoosa River to Thurlow Dam.
The CRS believes that this and other critical habitat designations
will be a powerful tool for improving understanding among developers,
builders, and land-use decision-makers about the importance of natural
flow regimes, morphology and stability of river channels, the value of
free-flowing habitat, and the significance of water chemistry to
maintain a healthy river fauna that otherwise will not be confronted.
The CRS goes on to state that, ``in the long run, the educational value
of designating critical habitat is among the most important of the
benefits attained.''
Our Response: Based on the best available scientific information,
we have concluded at this time that the lower Coosa and Tallapoosa
Rivers were not occupied at the time of listing. The last Alabama
sturgeon records we have from these rivers are prior to the
impoundments on the Alabama River. The current upper boundary on the
Cahaba River was based on the general location of the ``fall line'' and
has been used as such for other species (e.g., in the critical habitat
for three threatened mussels and eight endangered mussels in the Mobile
River Basin (69 FR 40083)). If information becomes available that
sturgeon were utilizing these stretches at the time of listing, or that
this area is essential to the conservation of the sturgeon, this rule
could then be revised based on the new information.
(23) Comment: One commenter stated that ``given the absence of the
species in large areas of the proposed critical habitat we recommend
additional clarification is provided that clearly states how such areas
are essential for the conservation of the species.''
Our Response: We agree that certain areas might not appear to be
occupied some of the time; however, sturgeons are not stationary
species. It is not uncommon for some species to migrate up to 578 km
(359 mi) to spawn, and then drift another 240 km (149 mi) as larvae
develop (DeLoney et al. 2007; Hrabik et al. 2007). We believe the
entire unit, as designated, was occupied at the time of listing and
contains one or more PCEs throughout the unit. Therefore, the areas
designated meet the definition of occupied critical habitat as set
forth in the Act.
(24) Comment: Two commenters believe the Service lacks the
information to support that Alabama sturgeon could occupy the Cahaba
River and impounded areas above Claiborne, Millers Ferry, and R.F.
Henry lock and dams.
Our Response: In July 2000, an Alabama sturgeon was collected near
the mouth of the Cahaba River, and we have reliable information that an
individual was collected and released in April 2008 by an angler
immediately below R.F. Henry Dam. Additionally, based on our best
available knowledge of other sturgeon species, these individuals will
move considerable distances from the points at which they were
collected. Although we do not have recent records from the Claiborne
pool, it contains one or more PCEs and is contiguous with occupied
habitats upstream and downstream; we conclude it was used by the
species in its movements up and down the river at the time of listing.
(25) Comment: One commenter believes our approach to identifying
the physical and biological requirements of the Alabama sturgeon is
``flawed'' because we state that we use information on the pallid and
shovelnose sturgeon.
[[Page 26492]]
Our Response: The Alabama sturgeon is an extremely rare species and
little information is available about its physical and biological
requirements. Therefore, as required by the Act, we used the best
available information which was generated mainly through the studies of
two of its closest relatives, the pallid and shovelnose sturgeon.
Considerable information has been recently published about the pallid
and shovelnose (cited in the proposed rule), and that information was
used as a basis for many of the assumptions made for the physical and
biological requirements. We believe that this is the best scientific
data available as required by the Act.
(26) Comment: One commenter questioned our use of ``stable'' in PCE
Number 2. They also question the association of mussel beds with stable
substrates.
Our Response: For the purpose of this analysis, stable refers to
consolidated bed materials that contain substrate materials that are
somewhat embedded and not easily moved. The presence of mussel beds in
these areas is simply used to illustrate that these areas have not
likely been disturbed in the recent past.
(27) Comment: One commenter did not understand how the fourth PCE
could apply to impounded areas of the Alabama River, because of the
presence of Claiborne, Millers Ferry, and R.F. Henry Locks and Dams.
Our Response: We are not implying that the impounded areas contain
the fourth PCE. Presence of all PCEs is not required for designation.
We believe the entire unit, as designated, was occupied at the time of
listing and contains one or more PCEs throughout the unit. Therefore,
the areas designated meet the definition of occupied critical habitat
as set forth in the Act.
(28) Comment: One commenter recommended the Service exclude all
existing Federally-maintained channels, marinas, boat ramps, public
swimming areas and docking facilities within the specified reach,
existing within-bank dredged material disposal areas, and Federal
reservoirs, locks and dams, because of the importance of navigation and
recreation on the Alabama River and hydropower generation by Federal
power plants.
Our Response: As was stated in the proposed rule (73 FR 30373),
critical habitat does not include manmade structures (such as
buildings, aqueducts, docks, dams, runways, roads, and other paved
areas) and the land or waterway on which they are located within the
legal boundaries of this rule. However, this language does not include
waterways (i.e., Federal reservoirs), public swimming areas, and
existing within-bank dredging material disposal areas that are owned by
the State of Alabama, found to be occupied at the time of listing, and
to contain one or more PCEs needed by the Alabama sturgeon; which is
why these areas have been included within the designation.
(29) Comment: One commenter was unclear how or when section 7
consultation would be required.
Our Response: As stated in the final rule, section 7(a)(2) of the
Act requires Federal agencies, including the Service, to ensure that
actions they fund, authorize, or carry out are not likely to destroy or
adversely modify critical habitat. Decisions by the Fifth and Ninth
Circuit Courts of Appeals have invalidated our definition of
``destruction or adverse modification'' (50 CFR 402.02) (see Gifford
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059
(9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et
al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this
regulatory definition when analyzing whether an action is likely to
destroy or adversely modify critical habitat. Under the provisions of
the Act, we determine destruction or adverse modification on the basis
of whether, with implementation of the proposed Federal action, the
affected critical habitat would remain functional (or retain those PCEs
that relate to the ability of the area to periodically support the
species) to serve its intended conservation role for the species.
Please refer to the Section 7 Consultation section of the rule below
for further discussion.
Comments About Flow and Water Management
The majority of the comments during the initial comment period
(ending July 27, 2008) were specific to the first PCE, especially the
131.4 cms (4,640 cfs) flow requirements. As stated in the revised rule
(73 FR 79772), we removed the 131.4 cms (4,640 cfs) from the first PCE
because we believed focusing on 131.4 cms (4,640 cfs) failed to account
for the complexity of variables that needs to be analyzed to determine
effects to the sturgeon.
(30) Comment: We received a total of eight written comments during
the initial comment period (ending July 28, 2008) that addressed flow
and the value included in the first PCE (131.4 cms (4,640 cfs)). All
comments, in various ways, specifically questioned the biological
relevance of the 131.4 cms (4,640 cfs) flow.
Our Response: We have historically and consistently maintained that
a 7-day average minimum flow of 131.4 cms (4,640 cfs) in the Alabama
River at Montgomery is ``adequate to sustain the Alabama sturgeon
during periods of drought.'' Proposals to allow flows to go below that
level are likely to continue to occur during drought conditions (but
could be proposed at other times) and we would recommend Federal
agencies enter into consultation on such proposals whenever they occur
because adverse effects are possible. We agree that the flow was not
created as a ``sturgeon'' flow, but rather a ``navigation'' flow. The
origin of the 131.4 cms (4,640 cfs) can be traced back to a 1972 letter
from Alabama Power Company (APC) to the USACE where APC concurs that a
7-day average flow of 131.4 cms (4,640 cfs) is acceptable for a trial
period. It goes on to state that the 131.4 cms (4,640 cfs) is based on
the 7Q10 for the USGS Gage at Montgomery.
We revised the proposed rule in order to better clarify our
position on the 131.4 cms (4,640 cfs) flow. The revision changed the
first PCE to the following:
A flow regime (i.e., the magnitude, frequency, duration,
seasonality of discharge over time) necessary to maintain all life
stages of the species in the riverine environment, including
migration, breeding site selection, resting, larval development, and
protection of cool water refuges (i.e., tributaries).
We changed the first PCE from its original description, because we
determined that the original wording failed to indicate that the flow
needs of the species are relative to the season of the year. For
example, sturgeon likely need a higher flow in the spring to
successfully spawn than was indicated by the 131.4 cms (4,640 cfs) in
the original PCE. Also, we determined that it was more descriptive and
helpful to potential action agencies to describe the flow habitat needs
of the species in relation to their seasonality and how those seasonal
flows allow for maintenance of all life stages. Lastly, we determined
that while we believe flows lower than 131.4 cms (4,640 cfs) may
involve adverse affects to the species (and therefore we will continue
to recommend consultation), depending upon other factors, lower flows
may or may not be found to result in measurable adverse effects.
Therefore, focusing on 131.4 cms (4,640 cfs) in the PCE fails to
account for the complexity of variables that need to be analyzed to
determine effects to the sturgeon. We will continue to use 131.4 cms
(4,640 cfs) as a trigger for section 7
[[Page 26493]]
consultation, but not necessarily a threshold for adverse modification.
(31) Comment: One commenter indicated the Service has not
demonstrated why additional requirements or regulatory PCEs (for flows)
are necessary for water quality.
Our Response: It was not our intent to designate additional flow
requirements in order to ensure State water quality compliance. As
stated by the commenter with this question, it is the responsibility of
the Alabama Department of Environmental Management (ADEM) to ensure
Clean Water Act compliance through the issuance and enforcement of
National Pollution Discharge Elimination System (NPDES) permits.
(32) Comment: APC noted that they are committed to continuing to
work with the Service, USACE, and other agencies to develop a drought
operations plan (Alabama Drought Operations Procedure--ADROP) for the
Alabama River.
Our Response: We appreciate the proactive steps APC has taken to
begin development of a drought operations plan for the Alabama River
(i.e., ADROP). We believe this is an important step to ensuring all
stakeholders fully understand the minimum flow requirements that may be
imposed during future drought events.
(33) Comment: APC presented summaries of the data (discharge,
temperature, and dissolved oxygen levels) they collected on August 5,
2008, and October 21, 2008, at various locations on the Alabama River
downstream of Claiborne Lock and Dam. One of these locations was a
USACE dredge site that has been dredged the last two years and has been
routinely occupied by the tagged Alabama sturgeon. They concluded that
temperature and dissolved oxygen levels were fairly well mixed at these
locations and further suggested that the tagged fish may not be
adversely affected by dredging.
Our Response: We appreciate APC's efforts to analyze flow,
temperature, and dissolved oxygen levels in these areas. This
information will be very useful as we analyze habitats that have been
occupied by the tagged fish. However, upstream of Claiborne Lock and
Dam conditions are likely quite different and will likely yield very
different results. Upstream of the dams (Claiborne and Miller Ferry)
conditions very much like a reservoir and are not as well mixed as
areas downstream of Claiborne Lock and Dam, which receives a constant
flow from the crested spillway. Therefore it would not be a fair
comparison to correlate these results with upstream areas that do not
receive a constant flow.
(34) Comment: The USACE believes the Memorandum of Agreement (MOA),
which includes the 1994 ``White Paper'', has served to protect the
Alabama sturgeon and its habitat. They believe that the MOA should be
referenced in the rule, acknowledging its protective value. They
believe it should continue to be adhered to in absence of newer
biological information.
Our Response: The 1994 ``White Paper'' is referenced in several
locations in the rule and we will continue to use it. However, we will
also modify it as needed and make future decisions based on the best
available science.
(35) Comment: Although the USACE agrees with the proposed changes
to the first PCE, they state that, ``if data exist to support the
designation of a flow regime, then a detailed flow regime should be
fully described in the PCE with references to supporting studies.''
They go on to say, ``without a fully described flow regime, the PCE
remains flawed, providing uncertain protection to the species as well
as uncertain economic impacts.''
Our Response: We do not believe a specific flow measurement would
be applicable at all times of the year and we do not have the data to
support a fully described flow regime. Our position continues to
support a variety of natural, seasonably variable flows that allow for
maintenance for all life stages of the sturgeon. In order to develop a
seasonably variable set of flow estimates for the species, we need
long-term stream gauging records and a continuous water quality
monitoring network at several points on the Alabama River. At this
time, there are a limited number of long term discharge records for the
Alabama River. The station with the longest period of record (67 years)
is the USGS station at Montgomery (station ID 0242000). We welcome the
opportunity to partner with the USACE to begin developing a long term
discharge and water values study.
(36) Comment: The APC had several comments about flow requirements
and the analysis they conducted on the data from the tagged Alabama
sturgeon below Claiborne Lock and Dam, these include:
(a) ``The relationship of flow to the specimen's needs is
inconclusive'' and there is ``no basis to identify any one ideal flow
for the Alabama sturgeon.''
(b) ``The specimen's behavior is not consistent with the second
PCE.'' Also, the behavior of the tagged fish does not indicate a
preference for deep pools habitats.
(c) ``There is a significant correlation between the tracked
specimen's location and historic dredging sites.''
Our Response: (a) We agree that identifying one ideal flow is
extremely difficult and may not, in the long run, be the most
beneficial recommendation for the sturgeon. As stated in clarification
letter to Industrial Economics (IEc) on October 22, 2008, we believe
that flow needs for the species are relative to the season of year. We
removed the 131.4 cms (4,640 cfs) from the first PCE to reflect this
need for flow seasonality.
(b) Our statement in the rule indicated that the Alabama sturgeon
``prefers'' a river channel with stable sand and gravel river bottoms,
and bedrock walls, including associated mussel beds. This doesn't mean
that they always occur in these habitats. The conclusions drawn by APC
are based upon data taken from one fish. Based on the best available
scientific information on other North American sturgeon species,
sturgeons do prefer these optimal conditions.
(c) While we appreciate the effort of APC to summarize and share
their assessments of the tracking data, we do not completely agree that
dredging creates favorable conditions for the sturgeon. The tagged
sturgeon below Claiborne Lock and Dam is likely occupying this section
of the river because of temperature (flow from Sizemore Creek) or food
resources. We do agree with APC's hypothesis that adult sturgeon can
exist under a variety of conditions, and focusing on spawning season
and the particular needs of eggs and larvae may ultimately have a
greater effect on long term survival than measures that focus on adult
specimens. We welcome the opportunity to work with APC to explore these
ideas.
Comments About the Science Used in This Designation
(37) Comment: The Alabama-Tombigbee Rivers Coalition (ATRC) urges
the Service to acknowledge the serious limitations in its scientific
knowledge of the Alabama sturgeon and its life cycle requirements. They
maintain virtually nothing is known about where it breeds, spawns, and
what they do after hatching.
Our Response: We certainly recognize that our knowledge base is
limited with the Alabama sturgeon. However, that is why we have elected
to use the best available scientific information on two of its closest
relatives, the pallid and shovelnose sturgeon.
(38) Comment: One commenter, representing the ATRC, agrees that the
[[Page 26494]]
Service ``was justified by selecting the shovelnose and pallid species
as surrogates to extrapolate the biological and physical information
for the Alabama sturgeon.'' However, the commenter also suggests that
there is little to no useful, documented information available to
validate the information we used in the development of the PCEs.
Specifically, the commenter questioned the lack of information related
to the effects of river flow on spawning, spawning behavior, migration
and aggregation at spawning sites, or egg deposition; substrate
preferences; growth rates; and diet of the Scaphirhynchus species.
Our Response: We respectfully disagree with the commenter's belief
about a lack of useful information on the shovelnose and pallid
sturgeon. In 2007, the Journal of Applied Ichthyology published an
entire volume dedicated to the biology and conservation of the three
North American riverine sturgeons (Volume 23 Issue 4, Pages 289-538
(August 2007)). Within this one volume there are 30 papers devoted
exclusively to describing embryonic development, genetic variability,
larvae distribution and dispersal, habitat use of during different flow
patterns, gonadal development, evaluating spawning site success, age
and growth, distribution and movements, and diet composition of larval
and adult sturgeons of the North American river sturgeons. Although we
recognize that there are still considerable data gaps in our knowledge
of these rare fishes, especially in terms of life history requirements,
we believe it is fair to assume two characteristics that all North
American sturgeon species (Acipenser and Scaphirhynchus) have in
common; that they spawn over hard substrates in swift water and that
they all migrate upstream to spawn. The Act requires us to use the best
available scientific information available and we have done this
throughout the rule and especially in the development of the PCEs.
(39) Comment: One commenter, representing the ATRC, commented that,
``high spring flows may not be essential to stimulation of sturgeon
spawning runs.''
Our Response: Although there are differing opinions on which
environmental cues are most important in stimulating sturgeon spawning
movement, available literature generally agree on one factor; that all
North American sturgeon spawn, or at least attempt to make spawning
runs in the spring. In the Southeastern United States, this just
happens to coincide with the wettest season and an extended
photoperiod; therefore, we believe successful spawning cues are likely
some combination of the above environmental factors, including high
spring flows.
(40) Comment: One commenter, representing the ATRC, commented that
Alabama sturgeon use similar movements as shovelnose and pallid
sturgeon, including low flow areas. The commenter also stated that,
``low flow seems to be of little concern to the Alabama sturgeon,
pallid sturgeon or shovelnose sturgeon.''
Our Response: We agree. The fish we have been tracking does occupy
low flow areas at certain times. We do not, however, have information
to suggest that this is a desired or preferred condition at other times
of the year. In addition, we know that higher flows are required during
specific times of the year to initiate spawning migrations and to allow
larvae to develop.
(41) Comment: One commenter, representing the ATRC, made the
following statement, ``the Endangered Species Act requires that
critical habitat designation must be based on the best scientific and
commercial data available.'' The commenter continued by stating the
Service had failed in this regard by not referencing several
publications.
Our Response: We respectfully disagree that we failed to use the
appropriate references. The literature cited list is available from the
Alabama Ecological Services Field Office (See ADDRESSES) and represents
the best scientific data available relevant to the Alabama sturgeon and
this designation of critical habitat.
(42) Comment: One commenter, representing the ATRC, describes in
detail the chronology of the sonic-tagged Alabama sturgeon's movements
and patterns from April 2007 through October 2008.
Our Response: We appreciate this summary of the movements of one
fish, and have used it in the context of the rest of the best available
information on the life history and biology of sturgeons.
Comments About Navigation and Dredging
(43) Comment: One commenter, representing the ATRC, stated that
dredging could actually benefit the Alabama sturgeon in several ways.
One of the examples used by the commenter is that dredging may actually
create habitat by increasing water velocity in pool-like areas, thus
increasing oxygen levels, cleaning the river bottom of silt and rotting
leaves, and having a flushing effect on the river.
Our Response: We recognize that some sturgeon species have proven
to be adaptive animals, especially in the Mississippi River, but we do
not believe the evidence supports that dredging will actually increase
available habitat, thereby increasing the recovery potential of the
Alabama sturgeon.
(44) Comment: The ATRC urges the Service to avoid significant
changes to current channel maintenance practices in the absence of
specific, new information which provides a valid scientific basis to
understand how and why it is necessary for conservation purposes.
Our Response: We review the operations and maintenance dredging
procedures on the Alabama River every five years and we believe the
information in the ``1994 White Paper'' is correct until new
information provides a valid basis to changing our findings on channel
maintenance and other issues. We will continue to use the best
available science in making decisions about this and other trust
resources.
Comments Related to the Economic Analysis
(45) Comment: Several commenters believe that the economic analysis
dramatically understates the true potential for adverse economic
impacts, some believe by a factor of as much as 100. Several of these
commenters state that when there are uncertainties about the nature and
breadth of regulatory impacts, the only way to identify the potential
economic impact is to assume the worst-case scenario and determine
economic impacts under those circumstances. Specifically, Troy
University submitted an analysis that the rule has ``the potential to
destroy approximately $900 million in local output and over $1.6
billion in the overall U.S. economy.''
Our Response: The commenters assume that a minimum water flow and a
cessation of dredging activities in the Alabama River will result from
critical habitat designation. They further assume that ongoing economic
activities within the ACT Basin, such as navigation, hydropower
operations, and industry production that relies on water transport
(such as pulp and paper), will be curtailed following critical habitat
designation. These eventualities appear improbable given the history of
conservation efforts undertaken for the sturgeon to date, and the
Service's current expectation for future actions. Nonetheless, Section
3 of the final economic analysis (FEA) recognizes that should the
Service, in the course of future consultations on river flows in
[[Page 26495]]
extreme drought years, determine that higher flows are necessary to
maintain suitable habitat conditions for sturgeon conservation, a
variety of activities including commercial shipping, recreation, or
hydropower may be impacted. In addition, a text box has been added to
the economic analysis that describes the analysis submitted by the
commenter.
(46) Comment: One commenter states that the benefits of critical
habitat designation outweigh the risks to the sturgeon caused by the
designation by an enormous margin. The commenter adds that potential
benefits include the value to medical research of having a fish that
has survived since the Jurassic Period, a fully restored commercial
fishery, and an attraction for historical and nature-based tourism
(which is important for poor communities' improvement).
Our Response: As described in Section 1 of the FEA, because the
Service believes that the direct benefits of the critical habitat rule
are best expressed in biological terms, the analysis does not quantify
or monetize benefits. However, a qualitative discussion of the
potential categories of benefits of sturgeon conservation and critical
habitat designation is provided in Section 7 of the FEA.
(47) Comment: One commenter states that justification for not using
input-output modeling is unsatisfactory because the use of input-output
analysis is an accepted tool utilized extensively by Federal agencies.
Our Response: As described in Section 1 of the FEA, regional
economic impact analysis (commonly using regional input/output models)
can provide an assessment of the potential localized economic impacts
of conservation efforts. Specifically, regional economic impact
analysis produces a quantitative estimate of the potential magnitude of
the initial change in the regional economy resulting from a regulatory
action. These models rely on multipliers that represent the
relationship between a change in one sector of the economy (e.g.,
expenditures by recreators) and the effect of that change on economic
output, income, or employment in other local industries (e.g.,
suppliers of goods and services to recreators). These economic data
provide a quantitative estimate of the magnitude of shifts of jobs,
revenues, and taxes in the local economy. However, for this analysis,
quantified impacts associated with sturgeon conservation efforts
primarily result in additional costs incurred due to short term
shutdowns of dredging operations to avoid the sturgeon. Remaining
quantified impacts to economic activities dependent upon water
management (e.g., navigation or hydropower), water quality permitting
(e.g., pulp and paper mills), and other activities are made up entirely
of administrative costs of section 7 consultations. Thus, measurable
impacts of the type typically assessed with input-output models are not
quantified in this analysis, and thus regional input-out modeling is
not used. As stated above, Section 3 of the FEA recognizes that should
the Service, in the course of future consultations on river flows in
extreme drought years, determine that higher flows are necessary to
maintain suitable habitat conditions for sturgeon conservation, a
variety of activities including commercial shipping, recreation, or
hydropower may be impacted. These impacts may in turn generate regional
economic effects.
(48) Comment: One commenter states that the DEA primarily gives
consideration to agency costs as measured in staff time for engagement,
but ignores third party costs.
Our Response: The FEA explicitly considers potential impacts to all
impacted parties, whether they are Federal agencies, local governments,
or private parties. Exhibit 1-2 of the FEA presents the administrative
cost estimates broken down into Service, Federal Agency, and third
party costs. Section 3 of the FEA discusses potential impacts that
could occur related to recreators, homeowners, and the navigation
industry, among others, should additional river flows be required for
the sturgeon. Section 4 of the FEA discuss potential impacts on NPDES
permitees, such as the pulp and paper industry, to the extent that
Alabama sturgeon encourages out-of-compliance NPDES-permitted
facilities to come into compliance sooner than would already have
occurred absent the sturgeon.
(49) Comment: One commenter states that IEc has found less than one
percent of species (out of 113 endangered species analyses) actually
would harm the economic environment (which was the Port of Los
Angeles).
Our Response: The economic analyses of critical habitat developed
by the Service, including those developed by the Service's economics
consultants, are not intended to present a determination of economic
harm. Instead, these analyses are intended to provide objective
information on potential economic and other costs of designation, which
the Secretary can then use in addressing the requirements of section
4(b)(2) of the Act. The commenter did not present any support for the
conclusion that only one percent of the studies performed have found
``harm'' to the economic environment. However, the Service notes that
the reports produced by IEc and other economics consultants have
addressed a wide-range of potential economic changes, both regional and
national in scope, potentially resulting from designation of critical
habitat.
(50) Comment: One commenter states that the DEA may not meet
recommended OMB standards because it does not consider regional growth
rates or market conditions associated with potentially impacted
industries.
Our Response: The U.S. Office of Management and Budget's (OMB)
guidelines for conducting economic analysis of regulations direct
Federal agencies to measure the costs of a regulatory action against a
baseline, which it defines as the ``best assessment of the way the
world would look absent the proposed action'' (U.S. Office of
Management and Budget, ``Circular A-4,'' September 17, 2003, available
at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.). In other
words, the baseline includes the existing regulatory and socio-economic
burden imposed on landowners, managers, or other resource users
potentially affected by the listing of the species. Impacts that are
incremental to that baseline (i.e., occurring over and above existing
constraints) are attributable to the proposed regulation, in this case
the designation of critical habitat. As recommended by OMB, the
baseline incorporates, as appropriate, trends in market conditions,
implementation of other regulations and policies by the Service and
other government entities, and trends in other factors that have the
potential to affect economic costs and benefits, such as the rate of
regional economic growth in potentially affected industries. In this
analysis, the anticipated impacts are primarily administrative, with
some impacts associated with temporary dredging shutdowns. The analysis
discusses the way in which these impacts relate to the existing
baseline conditions.
(51) Comment: One commenter states that there will be little or no
new economic development if the critical habitat is accepted as
proposed.
Our Response: The commenter presents no evidence to support this
statement.
(52) Comment: One commenter states that the counties surrounding
the proposed critical habitat are economically depressed,
disproportionately African-American, and in need of every possible
strategic
[[Page 26496]]
advantage to attract new jobs. Designation would therefore violate the
Council of Environmental Justice's definition of environmental justice,
in addition to imposing permanent economic impacts from which the
region will never be able to recover.
Our Response: Section 2 of the FEA presents demographic statistics
on the potentially affected region. The critical habitat region does
exhibit higher than average unemployment and poverty rates, and has
higher minority populations than areas outside the region. Note that,
as in Comment 45, the commenter assumes that ongoing economic
activities within the ACT Basin, such as navigation, hydropower
operations, and industry production that relies on water transport
(such as pulp and paper), will be curtailed following critical habitat
designation. These eventualities appear improbable given the history of
conservation efforts undertaken for the sturgeon to date, and the
Service's current expectation for future actions. All quantified
incremental impacts of critical habitat designation are administrative
impacts of section 7 consultation, and would not be expected to
disproportionately affect socio-economically disadvantaged groups.
(53) Comment: One commenter states that the DEA fails to consider
certain major impacts on the USACE's channel maintenance activities,
limits on industrial wastewater discharges, and limits on land use
activities such as agriculture and silviculture.
Our Response: The FEA considers impacts to maintenance dredging,
industrial wastewater discharge, agriculture, and silviculture in
Sections 4 and 5.
(54) Comment: One commenter states that additional flow
requirements could have large economic impacts associated with
navigation and hydropower generation throughout the basin. Associated
potential impacts would depend on the magnitude of the requirement,
timing, and prevailing drought-water budget interactions.
Our Response: We agree. See Comment 45.
(55) Comment: Several comments relate to barge traffic within the
river. One commenter states that access to reliable water
transportation provides a competitive advantage for the recruitment of
new industry for this region and cannot be ignored. Another states that
the use of barge transport for receiving fuel oil at their dock at the
69th river mile saves them approximately $1 million each year in
transportation costs. While another states that the DEA seriously
underestimates the value of barge transportation to the region of the
State, which is in a socio-economically disadvantaged area.
Our Response: Sections 3 and 5 of the FEA discuss the water
transportation industry in the Alabama River, and provide information
on the value of the industry to the region based on data produced by
the Coosa-Alabama River Improvement Association. However, the analysis
does not anticipate large impacts on the barge transportation industry.
Regarding the stated socio-economic concerns, additional demographic
information has been added to the FEA in Section 2.
(56) Comment: One commenter states that Carters Lake and Lake
Allatoona should be included in any discussions and analysis regarding
the effects of upstream reservoir storage and flows in the Alabama
River.
Our Response: Carters Lake and Lake Allatoona have been
incorporated into the discussion of potential impacts in Section 3 of
the analysis.
(57) Comment: One commenter states that an economic analysis on the
APC FERC relicensing efforts should be conducted after consultation is
complete in order to incorporate any agreed-upon minimum flow or
drought plan.
Our Response: The timeframe for publication of the critical habitat
rule was required by the court and precedes the completion of the
relicensing process for APC. We would agree that an analysis of impacts
once that process is complete could provide additional information.
(58) Comment: One commenter states that the DEA assumes the only
additional costs to the USACE will be costs associated with
consultation. The commenter adds that the USACE does incur shutdown
costs without the critical habitat designation, and that within-bank
disposal of dredged materials could also be affected.
Our Response: Section 5 of the FEA discusses that impacts to the
USACE are anticipated to include annual compliance costs incurred by
the USACE to communicate and coordinate their upcoming activities to
the Service at the beginning of each dredging season, as well as costs
incurred by the USACE and its contractors related to temporary dredging
shutdowns on average once per year between 2009 and 2028. Because (1)
the Service states in the critical habitat rule that only the dredging
of consolidated materials should result in a ``may affect''
determination for sturgeon critical habitat and (2) the Service has
confirmed through informal consultation with USACE every five years
since 1994 that dredging of unconsolidated sediment will not adversely
affect the sturgeon, the FEA finds that annual maintenance dredging of
the Federal navigation channel in the Alabama River is not expected to
be affected by the critical habitat rule, other than to continue to
result in a five-year review of USACE dredging activities. With regard
to potential impacts to within-bank disposal, Section 5.3.1 discusses
that during the 2008 five-year review, the Service did request that the
USACE move one disposal site from a river mouth to another location in
the channel, with limited impacts on operations.
(59) Comment: One commenter states that the dredging shutdown costs
for 2007 and 2008 ($88,800 and $44,400) appear to be industry costs,
and that they should be replaced with $25,620 and $14,011 for 2007 and
2008, respectively.
Our Response: At the time of the DEA, these USACE costs were not
available. These have been incorporated into Section 5 of the FEA and
total estimates have been revised accordingly.
(60) Comment: One commenter states that it is reasonable to expect
that dredging shutdowns will increase in frequency and duration as the
sturgeon population recovers. In addition, the commenter states that it
is also reasonable to expect that consultations will increase in
frequency as the sturgeon population recovers.
Our Response: No information is available about the rate at which
the sturgeon will recover or whether such recovery will overlap with
areas in which dredging takes place, or if fish will be tagged, so
forecasting increased dredging shutdown frequency is not possible. The
Service points out that a single tagged Alabama sturgeon currently
exists. Unless additional sturgeon can be found and tagged, we do not
expect more dredging shutdowns in the future. As the future population
of Alabama sturgeon is not known, this analysis uses the recent past as
an indicator of likely future rates of shutdowns. Nonetheless, a caveat
has been added to Section 5 of the FEA that describes the commenter's
concern.
(61) Comment: One commenter states that there are economic
uncertainties involved in future consultations that should be captured
as additional potential impacts. For example, FWS made recommendations
for additional conservation measures following the critical habitat
designation for the Gulf sturgeon, including the purchase and use of
hydrophones to monitor the presence of tagged Gulf sturgeon.
[[Page 26497]]
Our Response: The FEA acknowledges that uncertainty exists with
regard to future conservation efforts likely to be undertaken for
sturgeon. No specific additional recommendations have been identified
that would pertain to sturgeon critical habitat.
Summary of Changes From Proposed Rule
1. We have changed the first PCE from the original description in
our original proposal (73 FR 30361; and explained this change in a
subsequent revised proposed rule at 73 FR 79770) because we have
determined that the original wording failed to indicate that the water
flow needs of the species are relative to the season of the year.
Please refer to the Primary Constituent Elements (PCEs) for the Alabama
Sturgeon section below for specific wording of the first PCE.
2. We have further clarified a portion of the fifth PCE to:
``dissolved oxygen levels not less than 5 mg/L (5 ppm), except
under extreme conditions due to natural causes or downstream of
existing hydroelectric impoundments, where it can range from 5 mg/L to
4 mg/L (5 ppm to 4 ppm);
3. We added a few recommendations in the ``Special Management
Considerations'' section. These recommendations encourage finding
alternative ways of increasing the amount of free-flowing habitat in
the Alabama River that allow sturgeon and other migratory species to
move freely between feeding, resting, and spawning grounds.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(i) The specific areas within the geographical area occupied by the
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 geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) of the Act requires consultation on Federal
actions that may affect critical habitat. The designation of critical
habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation does not allow the government or public to access private
lands. Such designation does not require implementation of restoration,
recovery, or enhancement measures by non-Federal landowners. Where a
landowner seeks or requests Federal agency funding or authorization for
an action that may affect a listed species or critical habitat, the
consultation requirements of section 7(a)(2) would apply, but even in
the event of a destruction or adverse modification finding, the Federal
action agency's and the applicant's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
To be included in a critical habitat designation, habitat within
the geographical area occupied by the species at the time it was listed
must contain the features that are essential to the conservation of the
species, and be included only if those features may require special
management consideration or protection. Critical habitat designations
identify, to the extent known using the best scientific data available,
habitat areas that provide essential life cycle needs of the species
(i.e., areas on which are found those physical and biological features
essential to the conservation of the species). Under the Act and our
implementing regulations, we can designate critical habitat in areas
outside of the geographical area occupied by the species at the time it
is listed only when we determine that those areas are essential for the
conservation of the species and that designation limited to those areas
occupied at the time of listing would be inadequate to ensure the
conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that critical habitat
designated at a particular point in time may not include all of the
habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated area is
unimportant or may not be required for recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. Areas that support populations are also subject to the
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, as determined on the basis of the best available scientific
information at the time of the agency action. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
[[Page 26498]]
Physical and Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical and biological
features essential to the conservation of the species that may require
special management considerations or protection. We consider the
physical and biological features to be the PCEs laid out in the
appropriate quantity and spatial arrangement for the conservation of
the species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical geographical and ecological
distributions of a species.
We derive the specific PCEs for the Alabama sturgeon from the
biological needs of this species as described in the Critical Habitat
section of the proposed rule to designate critical habitat for the
Alabama sturgeon published in the Federal Register on May 27, 2008 (73
FR 30361), along with subsequent changes we describe above in the
Summary of Changes from Proposed Rule section.
Space for Individual and Population Growth and for Normal Behavior
All river sturgeons (Scaphirhynchus spp.) are migratory and may
migrate hundreds of kilometers to spawn. Generally, sturgeons migrate
to optimize feeding and reproductive success. Downstream migrations are
associated with feeding and upstream migrations are usually associated
with spawning (Auer 1996, p. 153; Bemis and Kynard 1997, p. 175). The
newly hatched larvae of other river sturgeon are free-floating and may
drift hundreds of kilometers before settling to a benthic (bottom)
juvenile existence. Therefore, connectivity and availability of
spawning areas and larval, juvenile, and adult feeding and growing
habitats are necessary for the conservation of the species.
Based on collection records, the species is known to inhabit the
main channel of large coastal plain rivers of the Mobile River Basin.
Specimens have been taken over a variety of substrates, including sand,
gravel, and mud, from 6 to 14 m (20 to 46 ft) deep (Williams and
Clemmer 1991, p. 26). The USACE identified 30 locations in the Alabama
River where 58 Alabama sturgeon were reportedly captured between 1950
and 1998, and documented channel morphology and substrate types at 12
of the capture locations during low flow conditions. Substrates
associated with these capture sites included sand, gravel, and
limestone outcrops. All capture locations downstream of Claiborne Lock
and Dam were either on or within 300 m (984 ft) of a sandbar.
Most historical and recent sturgeon capture sites are at or near
features presumably associated with feeding, reproduction, or refugia,
and include rock walls, channel training devices, deep pools, mussel
beds, and/or stable sand and gravel bottoms (Burke and Ramsey 1985, p.
53; Mayden and Kuhajda 1996, p. 257; Hartfield and Garner 1998, p. 4).
The presence of mussel beds represents stable channel habitats with
high aquatic invertebrate diversity and density that are likely
important feeding areas for sturgeon; deeper holes may be used as
thermal refugia during times of low flow and warmer temperatures
(Hartfield and Garner 1998, p. 5).
Data collected from a radio-tagged Alabama sturgeon, released in
1985 near Millers Ferry Lock and Dam on the Alabama River and tracked
for 4 months, showed that its preferred position was in swift current
at a depth of 7.7 to 12.3 m (25 to 40 ft), but never at the deepest
part at any location except where bottom contour was uniform (Burke and
Ramsey 1985, p. 32). Irwin et al. (2005, p. 5) and Kynard et al. (2007,
p. 369) documented that adult shovelnose sturgeon are more active at
night. This type of behavior was also observed in juvenile shovelnose
sturgeon (Kynard et al. 2007, p. 369), and a similar pattern is
currently being observed in the Alabama sturgeon collected in 2007 that
is being tracked in the lower Alabama River (ADCNR and Service
unpublished data 2007, 2008). During daylight hours in the summer of
2007, this sturgeon remained in the deeper, flowing portions of the
channel. However, during the late afternoon and early evening hours,
the sturgeon moved into shallower habitats directly adjacent to a small
perennial tributary. We have no evidence that the sturgeon moves into
these tributaries; it may be taking advantage of cooler water found at
the interface between the tributaries and the main stem of the river.
The amount of time this tagged fish spent in these areas indicates
these areas are important for feeding or for providing thermal refugia
during the warmer summer months.
Food
Reports indicate that the species is an opportunistic bottom feeder
(Mayden and Kuhajda 1996, p. 257; Williams and Clemmer 1991, p. 26;
Burke and Ramsey 1985, p. 35). Keevin et al. (2007, p. 500) conducted a
stomach content analysis on 12 Alabama sturgeon individuals from museum
collections and found aquatic insects and fish to be the predominant
food items. This finding suggests a diet quite similar to the diets of
the pallid and shovelnose sturgeons described by Gerrity et al. (2006,
p. 606) and Hoover et al. (2007, p. 494). Except for the absence of
fish in the diet of shovelnose sturgeon, all three species tended to
feed on similar items, primarily aquatic insects. The insects
identified in these studies are found over a variety of substrates,
including soft and hard rocky bottoms; therefore, protection of most
shallow-water habitat (shoals, gravel or sand bars) is essential to
maintaining an acceptable food base. A distinct difference observed by
Keevin et al. (2007, p. 502) in the diet of the Alabama sturgeon was
the presence of ceratopogonids (biting midges) and siphlonurids (mayfly
family). These small, aquatic larvae are very active, strong swimmers
that tend to occupy the water column or areas near the surface (Keevin
et al. 2007, p. 502), indicating that the sturgeon may be a mid-water
column feeder. Irwin et al. (2005, p. 39) found that juvenile
shovelnose sturgeon overwhelmingly preferred feeding in sandy
substrates and actively avoided gravel areas. It is unknown if this
behavior is displayed by the Alabama sturgeon, but 2007 tracking data
suggest that the species may rest in the deeper, fast-flowing areas
during the day and feed in shallow, sandy shoal areas at night (ADCNR
and Service unpublished data).
Water Quality
Generally, most species of sturgeon are not as tolerant of low
oxygen levels as other fishes; however, because of their benthic
lifestyles, they are more likely to encounter areas with low levels of
dissolved oxygen (Secor and Gunderson 1998, p. 611). Temperature and
dissolved oxygen levels can affect sturgeon survival and growth, with
early life stages being more sensitive to these variables than the
adult stage (Secor and Gunderson 1998, p. 604). High levels of
dissolved oxygen, as well as acceptable levels of other water quality
parameters, are necessary for egg maturation and hatching, and larval
and juvenile
[[Page 26499]]
development. Poor water quality has even been linked to hermaphrodism
in shovelnose and pallid sturgeon (U.S. Environmental Protection Agency
(USEPA) 2007, p. 4).
There are currently more than 1,600 National Pollutant Discharge
Elimination System (NPDES) permits issued within the Alabama River
downstream of the Fall Line, which could impact sturgeon habitat. It is
possible that some of these point-source discharges, along with other
non-point sources of pollutants, could produce pollutant concentrations
that may be harmful to the Alabama sturgeon. At the time of listing in
May 2000, we believed that State water quality standards (which the
State adopted from the national standards set by the USEPA) were
protective of the Alabama sturgeon as long as discharges were within
permitted limits and enforced according to the provisions of the Clean
Water Act (Biggins 1994, p. 4). These water quality requirements were
established with the intent to protect all aquatic resources within the
State of Alabama and were presumed to be protective of the Alabama
sturgeon. However, the Service is currently in consultation with the
USEPA to evaluate the protectiveness of criteria approved in USEPA's
water quality standards for Alabama sturgeon and other threatened and
endangered species and their critical habitats as described in the
Memorandum of Agreement our agencies signed in 2001 (66 FR 11201,
February 22, 2001). Other factors that can potentially alter water
quality are droughts and periods of low flow, non-point source runoff
from adjacent land surfaces (e.g., excessive amounts of nutrients,
pesticides, and sediment), and random spills or unregulated discharge
events. This could be particularly harmful during drought conditions
when flows are depressed and pollutants are more concentrated.
Therefore, adequate water quality, quantity, and flow are essential for
normal behavior, growth, and viability during all life stages of the
sturgeon, including embryo development and hatching, and larval and
juvenile development.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
The Alabama sturgeon is believed to reach sexual maturity between 5
and 7 years of age. Spawning frequency of both sexes is likely
influenced by food supply and fish condition, and may occur every 1 to
3 years. Similar to other river sturgeon, the Alabama sturgeon is
believed to migrate upstream during the late winter and spring to
spawn. These movements are likely extensive and cover long distances.
The capture of 12 individuals (including several gravid females)
during a single collection trip near the mouth of the Cahaba River on
March 21, 1969, suggests directional movements during the spawning
season (Williams and Clemmer 1991, p. 27). Gravid females with ripe
eggs have also been collected during late March, April, and early May,
which may indicate a prolonged spring spawning or yearly variations in
the occurrence of preferred spawning temperatures. Actual timing of
spawning during this period may also vary depending on water
temperature and river discharge. All sturgeon species produce eggs that
are adhesive and require a current for proper development. Although
specific locations at which eggs have been deposited have not been
identified for the Alabama sturgeon, they are presumably similar to
those of other river sturgeons, where eggs are deposited on hard bottom
substrates such as bedrock, armored gravel, or channel training works
in deep water areas, and possibly in some larger tributaries, such as
the Cahaba River (Burke and Ramsey 1985, p. 53).
Although no information about larval development exists for the
Alabama sturgeon, we assume that the Alabama sturgeon may have needs
similar to those of other river sturgeons, which require highly
oxygenated, long stretches of free-flowing water for development. The
larvae are planktonic, drifting with river currents for 12 to 13 days
after hatching, and exhibit a swim-up and drift behavior while floating
in currents (Kynard et al. 2007, p. 365). Research indicates that
pallid sturgeon larvae can drift more than 200 km (124 mi) during the
first 11 days of the larval life stage, depending on water velocities,
before settling to the benthic environment (Braaten and Fuller 2007, p.
1). It is unclear, at present, whether Alabama sturgeon require
distances comparable to those exhibited by pallid sturgeon, but the
life history strategy is thought to be the same. A further reduction in
the distance of free-flowing habitat currently available would likely
be detrimental to the sturgeon.
Riverine Flows and Channel Stability
Flows in the Mobile River Basin have been substantially altered
from natural conditions due to the construction and operation of the
large number of impoundments. Additionally, the river's temperature,
biogeochemical processes that would have occurred in the absence of the
dams, and pollution assimilation capabilities have also been altered.
Flowing water provides a means for transporting nutrients and food
items, moderating water temperatures and dissolved oxygen levels, and
diluting pollutants, as well as transporting and suspending developing
sturgeon embryos and larvae.
The quality of water, which comprises the sturgeon's chemical
habitat, is directly related to the volume of water present in the
river. It affects sturgeon behavior, growth, and viability in all life
stages. We have changed the first PCE from its original description
because we have determined that the original wording failed to indicate
that the flow needs of the species are relative to the season of the
year. For example, sturgeon likely need a higher flow in the spring to
successfully spawn than the 131.4 cms (4,640 cfs) flow indicated in the
original PCE. Also, we have determined that it is more descriptive and
helpful to potential action agencies to describe the habitat needs of
the species in relation to flow seasonality and how seasonal flows
allow for maintenance of all life stages. Lastly, we have determined
that while we believe flows lower than 131.4 cms (4,640 cfs) may
involve adverse effects to the species (and therefore we will continue
to recommend consultation), depending upon other factors, lower flows
may not result in measurable adverse effects. Therefore, focusing on
131.4 cms (4,640 cfs) in the PCE fails to account for the complexity of
variables that need to be analyzed to determine effects to the
sturgeon.
Aquatic life, including fish, requires acceptable levels of
dissolved oxygen. The type of organism and its life stage determine the
level of oxygen required. Generally, among the fish, cold water species
are the most sensitive, with young life forms being most critical.
Dissolved oxygen levels of 3 mg/L (3 ppm) and water temperatures of 22-
26 [deg]C (72-79 [deg]F) appeared to be lethal for juvenile Atlantic
sturgeon (Secor and Gunderson 1998, p. 607). Temperature, another water
quality parameter, is related to dissolved oxygen. The amount of
dissolved oxygen that is present in water (the saturation level)
depends upon water temperature. As the water temperature increases, the
saturated dissolved oxygen level decreases. The more oxygen there is in
the water, the greater the assimilative capacity (ability to consume
organic wastes with minimal impact) of that water (Pitt 2000, pp. 6-7).
Biochemical oxygen demand (BOD) is the oxygen that would be required to
stabilize the waste after its discharge into a body of water.
Wastewater discharges that have a high BOD will have a much greater
[[Page 26500]]
detrimental effect on stream dissolved oxygen during critical summer
months than they would during colder months. Summer months also have
lower stream flow rates, which worsens the problem by further reducing
the water's assimilative capacity (Pitt 2000, pp. 6-7). In the worst
case scenario, flows should be sufficient to meet State water quality
standards, which ensure at least 4 mg/L (4 ppm) of dissolved oxygen
during low-flow periods and below hydropower operations, and 5 mg/L (5
ppm) in other river reaches.
During 2007 and 2008, the Alabama River Basin experienced the worst
drought ever recorded. Although this drought is currently recognized as
the worst drought in modern history, some researchers believe that it
may not have been that unusual (B. Erhardt, USACE Meteorologist, pers.
comm. 2008). Using bald cypress (a long-lived species) growth rings as
an indication, the 2007-08 hydrologic period may have actually been
more normal over the last 1,000 years than conditions experienced over
the last 40 years (which may have been exceptionally wet). Therefore,
considering that sturgeon species have survived a range of hydrologic
conditions over the years, we believe sturgeon are adapted to these
periodic low-flow conditions, if poor water quality (from the Alabama
River reservoirs) doesn't further exacerbate the environmental stress
levels to the sturgeon. Although the sturgeon we are currently tracking
survived the 2007-08 drought, we do not believe that the Alabama
sturgeon is adapted to survive extended drought periods where water
quality is compromised by excessive discharges that the river is unable
to assimilate. More specifically, as described above, low-flow
conditions affect the chemical environment occupied by the fish, and
extended low-flow conditions coupled with higher pollutant levels would
likely result in behavior changes within all life stages, but could be
particularly detrimental to early life stages (e.g., eggs, larvae, and
juveniles).
Stable river bottoms also are required by the sturgeon. The
presence of stable river bottoms has been associated with the recent
and historical captures of sturgeon in the Alabama and Tombigbee
Rivers. Hartfield and Garner (1998, p. 6) documented the presence of
stable substrates located between dredge and disposal sites in the
lower Alabama River. These included areas with stable sand and gravel
river bottoms, and bedrock walls. The presence of mussel beds and a
diverse and dense insect community provide an indication that channel
bottoms are relatively stable (Hartfield and Garner 1998, p. 6). As
mentioned above, the preferred diet of the sturgeon is aquatic
invertebrates; therefore, the presence of mussel beds may be an
important indicator of suitable sturgeon feeding habitat.
Primary Constituent Elements (PCEs) for the Alabama Sturgeon
Under the Act and its implementing regulations, we are required to
identify the physical and biological features (PCEs laid out in the
appropriate quantity and spatial arrangement) within the geographical
area known to be occupied by the Alabama sturgeon at the time of
listing that are essential to its conservation and which may require
special management considerations or protections. Based on the above
needs and our current knowledge of the life history, biology, and
ecology of the species, we have determined that Alabama sturgeon's PCEs
are:
1. A flow regime (i.e., the magnitude, frequency, duration,
seasonality of discharge over time) necessary to maintain all life
stages of the species in the riverine environment, including migration,
breeding site selection, resting, larval development, and protection of
cool water refuges (i.e., tributaries).
2. River channel with stable sand and gravel river bottoms, and
bedrock walls, including associated mussel beds.
3. Limestone outcrops and cut limestone banks, large gravel or
cobble such as that found around channel training devices, and bedrock
channel walls that provide riverine spawning sites with substrates
suitable for egg deposition and development.
4. Long sections of free-flowing water to allow spawning migrations
and development of embryos and larvae.
5. Water temperature not exceeding 32 [deg]C (90 [deg]F); dissolved
oxygen levels not less than 5 mg/L (5 ppm), except under extreme
conditions due to natural causes or downstream of existing
hydroelectric impoundments, where it can range from 5 mg/L to 4 mg/L (5
ppm to 4 ppm); and pH (a measure of acidity) within the range of 6.0 to
8.5.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain the features essential to the conservation of the
species that may require special management consideration or
protections. It is recognized that numerous activities in and adjacent
to the unit designated as critical habitat, as described in this final
rule, may affect one or more of the PCEs found in that unit. These
activities include, but are not limited to, those listed in the
Application of the ``Adverse Modification'' Standard section as
activities that may destroy or adversely modify critical habitat. We
summarize here the primary threats to the physical and biological
features essential to the conservation of the species.
Water quality, as discussed in the Application of the ``Adverse
Modification'' Standard section, can influence all life stages of the
sturgeon. Water pollution and changes in water quality can originate
from either non-point or point source discharges. Non-point source
pollution is ubiquitous in the Mobile Basin and can originate from a
variety of land use practices (such as livestock grazing, row crop
farming, silviculture, and residential development). The impacts from
nearly all non-point source pollutant sources can be managed by
implementing the appropriate best management practices. This may
include creation and maintenance of riparian buffers, and control of
soil loss and runoff from adjacent lands. Point source pollution
typically originates from industrial and municipal discharges, but may
include any discharge that originates from a single point. Point source
pollution can be managed by ensuring that NPDES permitted discharges
are within compliance at all times. This requires proper water quality
monitoring and record keeping, and ensuring that enough flow is present
in the river to assimilate the volume of material that is being
discharged.
The Service should be consulted before actions that are Federally
funded, authorized, or permitted are undertaken that may disturb areas
upstream of areas known to support sturgeon, including perennial
streams that may provide critical thermal refuges to the sturgeon at
the interface with the main channel, especially during times when river
flows are at abnormally low levels (e.g., during droughts). Therefore,
prior to channel-disturbing activities, these areas should be
identified and precautions should be taken to ensure that the integrity
of these areas is maintained. Minimizing the effects of navigational
dredging and channelization (past evidence of which can be seen
throughout the historical range of the sturgeon) can be accomplished by
avoiding the removal of consolidated bed material and rock walls, and
consulting with the Service on proper disposal areas.
Long sections of free-flowing habitat, as discussed in the fourth
PCE, are necessary for spawning migrations and
[[Page 26501]]
development of larvae. Although we do not have specific information on
the exact length necessary for the Alabama sturgeon to successfully
migrate and develop, the best estimate we can make, from information on
the pallid and shovelnose sturgeon, is that it could be greater than
150 km (93 mi). We also recognize that although there are 524 river
kilometers (326 river miles) in the current designation, there may not
be long enough stretches of free-flowing habitat to completely meet
this requirement, but as we discussed under comment 10, this
is the best remaining habitat we have left. We will continue to work
with partners and seek every opportunity (e.g., fish passage) to
address these issues and work towards increasing the length of free-
flowing habitat that currently exists in the Alabama River.
Criteria Used To Identify Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
and commercial data available to designate critical habitat. We only
designate areas outside the geographical area occupied by a species
when a designation limited to its present range would be inadequate to
ensure the conservation of the species (50 CFR 424.12(e)). The Alabama
sturgeon is extremely rare. Despite extensive and intensive efforts in
the decade prior to its listing, only eight Alabama sturgeon were
captured, or reported captured and released. All river sturgeons are
migratory and may migrate hundreds of kilometers to spawn, and newly
hatched larvae may drift hundreds of kilometers before settling.
Therefore, connectivity of spawning, juvenile, and adult feeding and
developmental habitats is necessary for the conservation of the
species.
We began our analysis by evaluating the Alabama sturgeon in the
context of its distribution throughout the historical 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) Inclusion of reaches that provide the highest
likelihood of embryo and juvenile development, (2) inclusion of reaches
that contain suitable spawning habitat, and (3) inclusion of areas that
provide protection of the species during low flow periods and other
catastrophic events.
The historical range of the Alabama sturgeon included nearly every
major basin in the Mobile River basin downstream of the Fall Line,
comprising nearly 1,600 km (994 mi) of riverine habitat in the Mobile
River Basin in Alabama and Mississippi. There are records of Alabama
sturgeon from nearly all the major rivers in the Mobile River Basin
below the Fall Line, including the Black Warrior, Tombigbee, Alabama,
Coosa, Tallapoosa, Mobile, Tensaw, and Cahaba Rivers (Burke and Ramsey
1985, p. 1). However, over the last century, the species has
disappeared from at least 85 percent of its historical range, and since
the 1960s has experienced a significant decline in the remaining range.
Recent collections (since 1990) of the Alabama sturgeon are
confined to the lower Alabama River from its confluence with the
Tombigbee River upstream to R.F. Henry Lock and Dam, including the
lower Cahaba River (Rider and Hartfield 2007, p. 492). The entire
historical range of the Alabama sturgeon is now controlled by a series
of more than 25 large locks or dams. These manmade structures have
resulted in a series of impoundments that are interspersed with free-
flowing reaches of varying lengths. Within the Alabama sturgeon's
historical range there are three dams on the Alabama River (completed
between 1969 and 1971), two on the Black Warrior River (completed by
1971), and six on the Tombigbee River (completed between 1955 and
1985). These 11 dams alone have impounded and fragmented more than 970
km (602 mi) of riverine habitat once occupied by sturgeon. Prior to
construction of these structures, sturgeon could move freely between
feeding areas, from feeding areas to sites that were suitable for
spawning and development of embryos, and larvae had abundant free-
flowing riverine habitat to develop.
The locks and dams that impound the river constitute barriers to
sturgeon passage. Although fish species that occupy the middle of the
water column (e.g., shad, catfishes, paddlefish) could, and do, pass
through the locks while they are being operated, evidence suggests that
sturgeon do not pass through the lock chambers during normal lockages.
Most adult sturgeons, including the Alabama sturgeon, are benthic
(bottom-dwelling) cruisers, and are not likely to move up in the water
column to scale physical hurdles (Cooke et al. 2002, p. 108). The lock
chambers at Millers Ferry and Claiborne Locks and Dams have upper and
lower sills which form a rather large hurdle (about 9 m (30 ft) above
the river floor at the upper end of Miller Ferry) for sturgeon moving
upstream and downstream. However, recent work with shortnose sturgeon
could help develop promising new strategies for Alabama sturgeon fish
passage. For instance, at the Pinopolis Project (at the base of Lake
Moultrie on the Cooper River), cooperators have been attempting to move
sturgeon upstream via the navigation locks. Although fish have not yet
been shown to move directly through the locks, researchers have
manually captured sturgeon below the dam and then moved them upstream
of the lock, after which they migrated to areas approximately 161 km
(100 mi) upstream where spawning had been documented (Finney et al.
2006).
With migration routes impeded, isolated subpopulations of Alabama
sturgeon are unable to successfully recruit adequate numbers to
replenish the population. Reduced numbers of recruited sturgeon and
surviving adult fish can become more vulnerable to localized declines
in water and habitat quality caused by hydropower releases, local
riverine and land management practices, or by polluted discharges. It
is unlikely that Alabama sturgeon habitat and life cycle requirements
can be met in long stretches of low flow, such as those that exist in
the impounded areas of the river, where decreased flows typically cause
silt and other fine sediments to accumulate over bottom habitats,
creating unsuitable conditions for spawning, feeding, and larval growth
and development.
The Alabama sturgeon is considered extirpated from the upper
Alabama, Black Warrior, Tombigbee, Coosa, Tallapoosa, Mobile, and
Tensaw Rivers. The Upper Alabama is isolated by Robert F. Henry Lock
and Dam, and this reach of the river is essentially impounded to the
confluence of the Coosa and Tallapoosa Rivers, and does not contain
appropriate habitat for the conservation of the Alabama sturgeon.
Sturgeon have not been collected from the Black Warrior, Coosa,
Tallapoosa, or Tombigbee Rivers in more than 30 years. With the
exception of the extreme lower Tombigbee River, all of these areas are
isolated from currently occupied river reaches, and their riverine
habitats are impounded and highly fragmented by multiple large river
dams. Although some isolated areas within these drainages may contain
some of the appropriate habitat features for Alabama sturgeon, their
limited extent and the lack of continuity or accessibility to other
habitats limits their value to the species.
The Mobile, Tensaw, and lower Tombigbee Rivers are currently
accessible to Alabama sturgeon; however, there have been no confirmed
collections of the species in more than 20 years. In addition, the
natural hydrograph of the lower Mobile Basin has been radically altered
by multiple
[[Page 26502]]
navigation and hydropower dams on the Tombigbee River, and the flows
are seasonally highly variable. These areas may be occasionally used or
visited by subadult or adult Alabama sturgeon; however, there is no
recent evidence that this is occurring and little historical evidence
of such use. Although some habitat features occur in these river
reaches, their value in conservation of the species is not known.
At the time of listing, we considered the Alabama River from south
of Miller's Ferry Lock and Dam to the confluence of the Tombigbee River
to be occupied. Shortly after publication of the listing rule, an
Alabama sturgeon was captured and released at river mile 8.5 in the
Cahaba River. This capture of an adult sturgeon indicated that this
area also was occupied at the time of listing, given that the fish
could not have reached this area from other sections of the river due
to the lock and dam arrangement (see the Riverine Flows and Channel
Stability section), and would have been present at the time the rule
was published in the Federal Register (May 5, 2000). Given the fish's
proximity to the mouth of the Cahaba River and the lack of barriers
with the Alabama River section located between R.F. Henry Lock and Dam
and the Millers Ferry Lock and Dam, we believe the fish are likely to
use all of these areas, and, therefore, we consider these areas
occupied at the time of listing. There is some evidence of past
upstream spawning runs in the Cahaba River as well (Williams and
Clemmer 1991, p. 27). Based on historical information and recent
collections, we consider all of the following areas to have been
occupied at listing, as well as currently occupied: The Alabama River
from R.F. Henry Lock and Dam downstream to the confluence of the
Tombigbee River, and the Cahaba River from its confluence with the
Alabama River upstream to U.S. Highway 82, which is close to the Fall
Line at Centreville, Alabama. Given the lack of appropriate habitat
elsewhere within the species' historical range, we conclude that this
final designation should include all habitat occupied at the time of
listing.
Once we determined that the proper scale of the critical habitat
designation should cover the area occupied by the species, we assessed
the critical life history components of Alabama sturgeon as they relate
to habitat. Alabama sturgeon use the rivers for spawning, larval and
juvenile feeding and development, adult resting, feeding, and staging,
and to move between the areas that support these components. Therefore,
all areas meeting these requirements were considered for inclusion.
We then investigated the habitat types that support these life
history components and where these habitat areas are located. We
evaluated empirical data (including that gathered from recent
radiotelemetry), recent channel bathymetry data (collected by the
USACE), as well as published and unpublished literature. These habitat
components are described in the Primary Constituent Elements section of
this final rule.
To determine which areas should be designated as critical habitat,
we then evaluated where the necessary physical and biological features
of Alabama sturgeon habitat occur within the areas occupied at the time
of listing. Detailed location data are included in the unit description
in the Final Critical Habitat Designation section of this final rule.
We have determined that these areas occur from the Alabama River, at
its confluence with the Tombigbee River, upstream to R.F. Henry Lock
and Dam. This also includes the Cahaba River upstream to U.S. Highway
82 near the Fall Line in Bibb County. All of these areas support one or
more of the PCEs and are accessible to sturgeon (i.e., not entirely
blocked by dams). All life stages are associated with flowing waters
and other features characteristic of free-flowing riverine habitats.
Nearly the entire length of the Alabama and Cahaba River currently meet
these requirements. This area is being designated as critical habitat
to ensure adequate protection of spawning sites, habitat needed for
juvenile development, and movement of adult sturgeon to and from
spawning areas.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures, because
such lands lack PCEs for the Alabama sturgeon. The scale of the maps we
prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this final rule have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
a Federal action involving these lands will not trigger section 7
consultation with respect to critical habitat and the requirement of no
adverse modification unless the specific action would affect the PCEs
in the adjacent critical habitat.
We are designating as critical habitat lands that we have
determined to be occupied at the time of listing and contain, or have
the potential to contain, sufficient PCEs to support life history
functions essential for the conservation of the species.
The Alabama and Cahaba Rivers Critical Habitat Unit was designated
based on sufficient PCEs being present to support Alabama sturgeon life
processes. Some segments of this unit contain all PCEs and supported
multiple life processes. Some segments contained only a portion of the
PCEs necessary to support the Alabama sturgeon's particular use of that
habitat.
Final Critical Habitat Designation
We are designating one contiguous section of the Alabama River and
a portion of the lower Cahaba River as one critical habitat unit for
Alabama sturgeon. The areas we describe below constitute our current
best assessment at this time of areas that meet the definition of
critical habitat for the Alabama sturgeon. The single unit we are
designating as critical habitat is the Alabama River from its
confluence with the Tombigbee River, Clarke and Baldwin Counties,
Alabama, upstream to R.F. Henry Lock and Dam, Autauga and Lowndes
Counties, Alabama; and the Cahaba River from its confluence with the
Alabama River upstream to U.S. Highway 82 near the Fall Line in Bibb
County, Alabama. Table 1 shows the occupied unit, land ownership, and
approximate area.
Table 1--Alabama Sturgeon Final Critical Habitat Unit: Occupancy, Size, and Land Ownership
----------------------------------------------------------------------------------------------------------------
Size of unit in
Critical habitat unit Occupied at time of Currently occupied kilometers Land ownership by
listing (miles) type
----------------------------------------------------------------------------------------------------------------
Alabama and Cahaba Rivers....... yes................ yes................ 524 (326) State.
----------------------------------------------------------------------------------------------------------------
[[Page 26503]]
We present a brief description of the unit and reasons why it meets
the definition of critical habitat for the Alabama sturgeon, below.
Unit: Alabama and Cahaba Rivers, Alabama
The critical habitat unit encompasses 524 km (326 mi) of river
channel. The portion of river channel in the Alabama River extends 394
km (245 mi) from its confluence with the Tombigbee River, Baldwin and
Clarke Counties, Alabama, upstream to R.F. Henry Lock and Dam, Autauga
and Lowndes Counties, Alabama; and the portion of river channel in the
Cahaba River extends 130 km (81 mi) from its confluence with the
Alabama River, Dallas County, Alabama, upstream to U.S. Highway 82,
Bibb County, Alabama. The Alabama and Cahaba Rivers are the last known
areas that still support the sturgeon, and both were occupied at the
time of listing. This was recently confirmed by the 2007 collection of
an individual from the Alabama River below Claiborne Lock and Dam, and
the 2000 collection of an individual sturgeon from the lower Cahaba
River (ADCNR pers. comm. 2007). Although the Alabama River, within this
unit, contains two physical barriers (Claiborne and Millers Ferry Locks
and Dams), it has several PCEs and has the potential to support all of
the PCEs to sustain this extremely rare fish. The single critical
habitat unit includes, for each river or stream listed, the channel
between the ordinary high water mark on each bank, which is defined in
33 CFR 329.11 as ``the line on the shore established by the
fluctuations of water and indicated by physical characteristics such as
clear, natural line impressed on the bank; shelving; changes in the
character of the soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas.'' The distances between
landmarks marking the upstream and downstream boundaries of the unit
are given in kilometers and equivalent miles, as measured by tracing
the thalweg (a line connecting the lowest points of successive cross
sections) of the stream, not the straight-line distance. River miles
referenced in this rule were taken from a USACE 1985 stream mileage
table.
The river channel within the entire unit is owned by the State of
Alabama, and the vast majority of adjacent lands are under private
ownership, with the exception of a portion of the Cahaba River that
includes Talladega National Forest (Oakmulgee Division). Although the
Oakmulgee Division encompasses a total of 63,484 hectares (ha) (156,871
acres (ac)), there are only about 9,952 ha (24,591 ac) that are
directly adjacent to the Cahaba River. The Barton Beach Reserve, a
small tract owned by The Nature Conservancy, encompasses 45 ha (112 ac)
and covers approximately 1,150 m (3,773 ft) along the Cahaba River.
This unit meets the definition of critical habitat based on the
discussion above and contains all PCEs. This unit was occupied at the
time of listing and is currently occupied. Special management of the
PCEs for the Alabama sturgeon and its habitat may be required for the
following threats: Low-flow conditions, detrimental changes in water
quality, reduction in the amount of free-flowing habitat, and
detrimental changes to the morphology or stability of the river
channel.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the Fifth and Ninth Circuits Court of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain those physical and biological features that
relate to the ability of the area to periodically support the species)
to serve its intended conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect Alabama sturgeon or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, Tribal, local, or private lands requiring a
Federal permit (such as a permit from the USACE under section 404 of
the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under
[[Page 26504]]
section 10 of the Act) or involving some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency) are subject
to the section 7 consultation process. Federal actions not affecting
listed species or critical habitat, and actions on State, Tribal,
local, or private lands that are not Federally funded, authorized, or
permitted, do not require section 7 consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or retain those PCEs that relate to
the ability of the area to periodically support the species. Activities
that may destroy or adversely modify critical habitat are those that
alter the PCEs to an extent that appreciably reduces the conservation
value of critical habitat for Alabama sturgeon. As discussed above, the
role of critical habitat is to support the life history needs of the
species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the Alabama sturgeon include, but are not limited
to:
(1) Actions that would significantly alter the existing flow regime
to the point at which the habitat could no longer sustain normal
behavior and promote species recovery. Such activities could include,
but are not limited to, construction and operation of dams, water
withdrawals, and channelization. These activities could eliminate or
reduce spawning habitats, impair the development of embryos and larvae,
impede or eliminate normal migration patterns, reduce the ability of
the river to adequately assimilate pollution, and compromise the
integrity and utility of cool water refuges (perennial tributaries). In
addition, flows less than 4,640 cubic feet per second, as determined by
the USACE at Montgomery, would need to be evaluated on an individual
basis to determine if they may affect the critical habitat, and
conclusions could be dependent, in part, on intervening flows (e.g.,
Catoma Creek, Cahaba River), water temperature, and dissolved oxygen
content in the Alabama River downstream of Montgomery. Dependent on
these factors and conditions in the river at the time of the
consultation, a Not Likely to Adversely Affect Determination could
still be possible.
(2) Actions that would significantly alter the morphology and
stability of the river channel. Such activities would include, but are
not limited to, dredging and mining of consolidated bed material,
impoundments, road and bridge construction, and destruction of riparian
vegetation. These activities could eliminate suitable substrates for
egg deposition and development, increase turbidity, and initiate
erosion along the banks, which could increase water temperatures and
reduce the width of the riparian zone.
(3) Actions that would significantly decrease the amount of
currently available free-flowing habitat. Such activities would
include, but are not limited to, construction and operation of dams,
water withdrawals, further alteration of flow regimes, and diversions.
These activities could further minimize the currently available length
of free-flowing habitat to support spawning migrations and development
of embryos and larvae.
(4) Actions that would significantly alter water chemistry beyond
what is required in the State of Alabama water quality standards. Such
activities would include, but are not limited to, the discharge of
chemicals, biological pollutants, nutrients, and other toxic substances
that originate from non-point or point source discharges, and altered
flow patterns that could lower dissolved oxygen levels. These
substances could directly, or through accumulation in tissue, impair
sturgeon behavior, reproduction, and growth.
We consider the unit designated as critical habitat to contain
features essential to the conservation of Alabama sturgeon and which
require special management. The unit is within the geographic range of
the species, it was occupied by the species at the time of listing, and
it is currently occupied. Federal agencies already consult with us on
activities that may affect the species, to ensure that their actions do
not jeopardize the continued existence of Alabama sturgeon.
Exemptions and Exclusions
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 670a of this title, if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.''
There are no Department of Defense lands with a completed
integrated natural resources management plan within the designated
critical habitat designation.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the statute on its face, as well as the legislative
history, are clear that the Secretary has broad discretion regarding
which factor(s) to use and how much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If based on this analysis, we make this determination, then
we can exclude the area only if such exclusion would not result in the
extinction of the species.
[[Page 26505]]
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis, which
we made available for public review on December 30, 2008 (73 FR 79770),
based on the May 27, 2008, proposed rule (73 FR 30361). We accepted
comments on the draft analysis until February 9, 2009. Following the
close of the comment period, a final analysis of the potential economic
effects of the designation was developed taking into consideration the
public comments and any new information.
The intent of the FEA is to quantify the economic impacts of all
potential conservation efforts for Alabama sturgeon. The economic
impact of the final critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.'' The ``without critical habitat'' scenario
represents the baseline for the analysis, considering protections
already in place for the species (e.g., under the Federal listing and
other Federal, State, and local regulations). The baseline, therefore,
represents the costs incurred regardless of whether critical habitat is
designated. The ``with critical habitat'' scenario describes the
incremental impacts associated specifically with the designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical habitat above and beyond the baseline costs; these are the
costs we consider in the final designation of critical habitat. The
analysis looks retrospectively at baseline impacts incurred since the
species was listed, and forecasts both baseline and incremental impacts
likely to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2000 (year of the species' listing; 65 FR
26438), and considers those costs that may occur in the 20 years
following the designation of critical habitat, which was determined to
be the appropriate period for analysis because limited planning
information was available for most activities to forecast activity
levels for projects beyond a 20-year timeframe. The FEA quantifies
economic impacts of Alabama sturgeon conservation efforts associated
with the following categories of activity: water management, activities
that impact water quality, dredging activities and other impacts (e.g.,
bridge replacement, management plans, natural gas pipelines, etc.).
Present value baseline impacts associated with potential future
conservation efforts for the sturgeon are estimated to be $636,000
($42,700 annualized), assuming a 3 percent discount rate, or $466,000
($44,000 annualized), assuming a 7 percent discount rate, over the next
20 years. Baseline impacts quantified in this analysis are 40 percent
project modifications for dredging activities. All remaining baseline
impacts are administrative costs of section 7 consultation. Impacts to
dredging activities represent roughly 58.9 percent of forecast post-
designation baseline costs. Impacts associated with water management
represent 17.1 percent of the total, and impacts to activities that may
affect water quality represent 15.1 percent of the total. Present value
incremental impacts are anticipated to result entirely from the added
administrative requirements of forecast section 7 consultations, and
are estimated to be $93,800 ($6,300 annualized), assuming a 3 percent
discount rate, or $71,200 ($6,720 annualized), assuming a 7 percent
discount rate.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Following a
consideration of the potential conservation benefits to the species
from the designation of critical habitat and the potential economic
impact, we have determined that there is a great conservation benefit
to maintaining all areas within the designation. Consequently, we are
not excluding any areas from this designation of critical habitat for
the Alabama sturgeon based on economic impacts.
A copy of the final economic analysis with supporting documents may
be obtained by contacting the Alabama Ecological Services Field Office
(see ADDRESSES) or by downloading from the Internet at http://www.regulations.gov.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this final rule, we
have determined that the lands within the designation of critical
habitat for Alabama sturgeon are not owned or managed by the DOD;
therefore, we anticipate no impact to national security. There are no
areas excluded from this final designation based on impacts on national
security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any HCPs or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at any Tribal issues, and consider the government-to-
government relationship of the United States with Tribal entities. We
also consider any social impacts that might occur because of the
designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for Alabama sturgeon, and
the final designation does not include any Tribal lands or trust
resources. We anticipate no impact to Tribal lands, partnerships, or
HCPs from this critical habitat designation. There are no areas
excluded from this final designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the
[[Page 26506]]
environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
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
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities. The SBREFA
amended RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Alabama sturgeon will not have a significant
economic impact on a substantial number of small entities. The
following discussion explains our rationale.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts to
these small entities are significant, 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 could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., water
management, water quality, dredging, and other activities). We apply
the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies already are required to consult with us under
section 7 of the Act on activities they authorize, fund, or carry out
that may affect the Alabama sturgeon. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities (see Application
of the ``Adverse Modification Standard'' section).
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
Alabama sturgeon and the designation of critical habitat. The analysis
is based on the estimated impacts associated with the rulemaking as
described in Chapters 3 through 6 and Appendix A of the analysis and
evaluates the potential for economic impacts related to: (1) Water
management, (2) water quality, (3) dredging, and (4) other activities.
All incremental impacts quantified in the economic analysis are
administrative impacts of conducting the forecasted section 7
consultations. That is, the designation of critical habitat is not
forecasted to result in changes in operations and management of the
water-dependent land use activities considered in this analysis as
discussed in Sections 3 through 6. Small entities may, however, be
required to spend additional time considering critical habitat during
section 7 consultation. These incremental, administrative impacts are
the focus of this analysis of impacts to small entities.
For development, construction, and dredging activities, the
threshold is expressed in terms of annual revenues. While this
threshold marks the high-end revenue estimate for the potentially
affected small businesses, impacts per entity as described in the
exhibit are significantly less than the threshold estimates.
Conservatively assuming a single business is associated with all of the
forecasted impacts for each activity, the greatest impact per entity
would be incurred by a business that affects water quality. Note that
the present-value, 20-year impact of $5,570 to a single small business
is less than 0.01 percent of the small business annual revenue
thresholds in this case.
In addition to the incremental impacts summarized in Exhibit A-1 of
the FEA, Sections 3 and 4 of the analysis discuss potential impacts
that may result from providing greater river flow or complying with
water quality standards to benefit the sturgeon.
While this analysis acknowledges that such changes may generate
economic impacts, we indicated in an October 22, 2008, memorandum
(provided as Appendix D in the FEA) that we cannot reliably predict
whether, when, or the reasons, we may request these conservation
efforts. In the case that the designation of critical habitat triggers
the request for these conservation efforts, associated economic impacts
would be considered incremental and therefore relevant to this
discussion of impacts on small entities. In the case that we request
higher river flows or accelerated compliance with existing water
standards, small businesses may be affected. The nature of these
potential impacts is presented in Sections 3 and 4 of the FEA.
In summary, we considered whether this designation would result in
a significant economic effect on a substantial number of small
entities. Based on the above reasoning and
[[Page 26507]]
currently available information, we concluded that this rule would not
result in a significant economic impact on a substantial number of
small entities. Therefore, we are certifying that the designation of
critical habitat for Alabama sturgeon will not have a significant
economic impact on a substantial number of small entities, and a
regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 (E.O.
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'') on regulations that
significantly affect energy supply, distribution, and use. E.O. 13211
requires agencies to prepare Statements of Energy Effects when
undertaking certain actions. OMB has provided guidance for implementing
this Executive Order that outlines nine outcomes that may constitute
``a significant adverse effect'' when compared to not taking the
regulatory action under consideration. There are currently two
hydroelectric dams (Robert F. Henry and Millers Ferry Locks and Dams)
located on portions of the river within the critical habitat
designation. Although insufficient information is available to estimate
changes in the electricity production of these facilities due to
sturgeon conservation efforts, it is unlikely that any such changes
would result in decreased electricity production of one billion
kilowatt-hours in even the worst drought year (when additional flows
for sturgeon conservation efforts would be most needed). During the
drought year of 2007, total electricity generation from the 15
hydroelectric facilities in the ACT Basin was roughly 2.19 billion
kilowatt-hours. To reach the 1 billion kilowatt-hour reduction
specified in Executive Order No. 13211, 2007 generation would need to
be reduced by 46 percent. Although changes in the timing and magnitude
of flows throughout a given year for sturgeon conservation efforts may
impact total electricity generation, total flow volume over the course
of that year will remain unchanged. Any recommendations from us are
therefore unlikely to cause reductions in generation of this magnitude.
As such, designation of critical habitat is not expected to lead to any
of the adverse outcomes specified in Executive Order No. 13211. As
such, the designation of critical habitat is not expected to
significantly affect energy supplies, distribution, or use. Therefore,
this action is not a significant energy action, 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.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments,'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and Tribal governments under entitlement authority,''
if the provision would ``increase the stringency of conditions of
assistance'' or ``place caps upon, or otherwise decrease, the Federal
Government's responsibility to provide funding,'' and the State, local,
or Tribal governments ``lack authority'' to adjust accordingly. At the
time of enactment, these entitlement programs were: Medicaid; Aid to
Families with Dependent Children work programs; Child Nutrition; Food
Stamps; Social Services Block Grants; Vocational Rehabilitation State
Grants; Foster Care, Adoption Assistance, and Independent Living;
Family Support Welfare Services; and Child Support Enforcement.
``Federal private sector mandate'' includes a regulation that ``would
impose an enforceable duty upon the private sector, except (i) a
condition of Federal assistance or (ii) a duty arising from
participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments, because it will not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. As such, a Small
Government Agency Plan is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for Alabama sturgeon in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. The takings implications
assessment concludes that this designation of critical habitat for
Alabama sturgeon does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), 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 policy, we requested information from, and coordinated
development of, this critical habitat designation with appropriate
State resource agencies in Alabama. We received comments from the State
of Georgia, the Alabama Office of Water Resources, the Governor's
Office for the State of Alabama, and the
[[Page 26508]]
Alabama Department of Conservation and Natural Resources, and we have
addressed them in the Summary of Comments and Recommendations section
of the rule. The designation of critical habitat in areas currently
occupied by the Alabama sturgeon may impose nominal additional
regulatory restrictions to those currently in place and, therefore, may
have little incremental impact on State and local governments and their
activities. The designation may have some benefit to these governments,
in that the areas that contain the physical and biological features
essential to the conservation of the species are more clearly defined,
and the PCEs of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what Federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Civil Justice Reform--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the
regulation meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of the Order. We are designating critical habitat in
accordance with the provisions of the Act. This final rule uses
standard property descriptions and identifies the physical and
biological features essential to the conservation of the subspecies
within the designated areas to assist the public in understanding the
habitat needs of the Alabama sturgeon.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. 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 (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
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), E.O. 13175, and the Department of the
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. In accordance with
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal
Rights, Federal-Tribal Trust Responsibilities, and the Endangered
Species Act,'' we readily acknowledge our responsibilities to work
directly with Tribes in developing programs for healthy ecosystems, to
acknowledge that Tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes. We determined that there are no
Tribal lands occupied at the time of listing that contain the features
essential for the conservation, and no unoccupied Tribal lands that are
essential for the conservation of the Alabama sturgeon. Therefore, we
are not designating critical habitat for the Alabama sturgeon on Tribal
lands.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Alabama Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Author(s)
The primary authors of this package are the staff of the Alabama
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
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; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
0
2. In Sec. 17.11(h), revise the entry for ``Sturgeon, Alabama'' 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 Status When listed habitat rules
Common name Scientific name or
threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Fishes
* * * * * * *
Sturgeon, Alabama Scaphirhynchus U.S.A. (AL, MS)...... NA E 697 17.95(e) NA
suttkusi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 26509]]
0
3. In Sec. 17.95, amend paragraph (e) by adding an entry for ``Alabama
sturgeon (Scaphirhynchus suttkusi),'' in the same alphabetical order
that the species appears in the table at Sec. 17.11(h), to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes
* * * * *
Alabama sturgeon (Scaphirhynchus suttkusi)
(1) Critical habitat unit is depicted for Baldwin, Monroe, Wilcox,
Clarke, Dallas, Lowndes, Autauga, Bibb, and Perry Counties, Alabama, on
the map below.
(2) The primary constituent elements of critical habitat for the
Alabama sturgeon are:
(i) A flow regime (i.e., the magnitude, frequency, duration,
seasonality of discharge over time) necessary to maintain all life
stages of the species in the riverine environment, including migration,
breeding site selection, resting, larval development, and protection of
cool water refuges (i.e., tributaries).
(ii) River channel with stable sand and gravel river bottoms, and
bedrock walls, including associated mussel beds.
(iii) Limestone outcrops and cut limestone banks, large gravel or
cobble such as that found around channel training devices, and bedrock
channel walls that provide riverine spawning sites with substrates
suitable for embryo deposition and development.
(iv) Long sections of free-flowing water to allow spawning
migrations and development of embryos and larvae.
(v) Water temperature not exceeding 32[deg] Celsius (90[deg]
Fahrenheit); dissolved oxygen levels not less than 5 milligrams per
liter (mg/L) (5 parts per million (ppm)), except under extreme
conditions due to natural causes or downstream of existing
hydroelectric impoundments, where it can range from 5 mg/L to 4 mg/L (5
ppm to 4 ppm); and pH within the range of 6.0 to 8.5.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, docks, dams, runways, roads, and other paved
areas) and the land or waterway on which they are located existing
within the legal boundaries on the effective date of this rule.
(4) Critical habitat map unit. Data layers defining the map unit
were created on a base of USGS 7.5' quadrangles, and the critical
habitat unit was then mapped using Universal Transverse Mercator (UTM)
coordinates.
(5) Unit: Alabama and Cahaba Rivers; Baldwin, Monroe, Wilcox,
Clarke, Dallas, Lowndes, Autauga, Perry, and Bibb Counties, Alabama.
(i) The unit encompasses 524 km (326 mi) of river channel. The
portion of river channel in the Alabama River extends 394 km (245 mi)
from its confluence with the Tombigbee River, Baldwin and Clarke
Counties, Alabama, upstream to R.F. Henry Lock and Dam, Autauga and
Lowndes Counties, Alabama; and the portion of river channel in the
Cahaba River extends 130 km (81 mi) from its confluence with the
Alabama River, Dallas County, Alabama, upstream to U.S. Highway 82,
Bibb County, Alabama.
(ii) Note: Map of Unit, Critical Habitat for Alabama Sturgeon
(Scaphirhynchus suttkusi): Alabama and Cahaba Rivers, follows:
BILLING CODE 4310-55-P
[[Page 26510]]
[GRAPHIC] [TIFF OMITTED] TR02JN09.011
* * * * *
Dated: May 21, 2009.
Jane Lyder,
Deputy Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. E9-12517 Filed 6-1-09; 8:45 am]
BILLING CODE 4310-55-C