[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]



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Part II





Department of the Interior





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Fish and Wildlife Service



50 CFR Part 17



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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]]


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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.

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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.

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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

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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

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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

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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