[Federal Register Volume 76, Number 33 (Thursday, February 17, 2011)]
[Notices]
[Pages 9320-9327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3628]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. 100603239-0275-02]
RIN 0648-XW85


Endangered and Threatened Wildlife; 90-Day Finding on a Petition 
To List Alabama Shad as Threatened or Endangered Under the Endangered 
Species Act (ESA)

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Department of Commerce.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We (NMFS) announce a 90-day finding on a petition to list 
Alabama shad (Alosa alabamae) as threatened or endangered and designate 
critical habitat under the ESA. We find that the petition does not 
present substantial scientific or commercial information indicating 
that the petitioned actions may be warranted.

ADDRESSES: Copies of the petition and related materials are available 
upon request from the Assistant Regional Administrator, Protected 
Resources Division, Southeast Regional Office, NMFS, 263 13th Avenue 
South, St. Petersburg, FL 33701, or on the NMFS Southeast Region's Web 
site at http://

[[Page 9321]]

sero.nmfs.noaa.gov/pr/AlabamaShad.htm.

FOR FURTHER INFORMATION CONTACT: Kelly Shotts, NMFS, Southeast Region, 
(727) 824-5312; or Marta Nammack, NMFS, Office of Protected Resources, 
(301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Background

    In 1997, we added Alabama shad to our Candidate Species List (62 FR 
37562; July 14, 1997). At that time, a candidate species was defined as 
any species being considered by the Secretary of Commerce (Secretary) 
for listing as an endangered or a threatened species, but not yet the 
subject of a proposed rule (49 FR 38900; October 1, 1984). In 2004, we 
created the Species of Concern list (69 FR 19975; April 15, 2004) to 
encompass species for which we have some concerns regarding their 
status and threats, but for which insufficient information is available 
to indicate a need to list the species under the ESA. Twenty-five 
candidate species, including the Alabama shad, were transferred to the 
Species of Concern list at that time because they were not being 
considered for ESA listing and were better suited for Species of 
Concern status due to some concerns and uncertainty regarding their 
biological status and threats. The Species of Concern status does not 
carry any procedural or substantive protections under the ESA.
    On April 20, 2010, the Center for Biological Diversity, Alabama 
Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration 
Network, Tennessee Forests Council, and the West Virginia Highlands 
Conservancy (petitioners) submitted a petition to the Secretaries of 
Interior and Commerce, as well as to the Regional Director of the 
Southeast Region of the U.S. Fish and Wildlife Service (USFWS), to list 
404 aquatic, riparian, and wetland species from the Southeastern United 
States as threatened or endangered under the ESA. The petitioners also 
requested that critical habitat be designated under the ESA for all 
petitioned species. NMFS' Southeast Region notified the USFWS' 
Southeast Region by letter dated May 3, 2010, that we believe the 
Alabama shad, one of the 404 petitioned species, falls under NMFS' 
jurisdiction based on the August 1974 Memorandum of Understanding 
regarding jurisdictional responsibilities and listing procedures 
between the two agencies. We proposed to evaluate the petition, for the 
Alabama shad only, for the purpose of the 90-day finding and any 
required subsequent listing action. On May 14, 2010, we sent the 
petitioners confirmation that we would be evaluating the petition for 
Alabama shad.

ESA Statutory Provisions and Policy Considerations

ESA Statutory and Regulatory Provisions and Evaluation Framework
    Section 4(b)(3)(A) of the ESA of 1973, as amended (U.S.C. 1531 et 
seq.), requires, to the maximum extent practicable, that within 90 days 
of receipt of a petition to list a species as threatened or endangered, 
the Secretary of Commerce make a finding on whether that petition 
presents substantial scientific or commercial information indicating 
that the petitioned action may be warranted, and to promptly publish 
such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)). When it 
is found that substantial scientific or commercial information in a 
petition indicates the petitioned action may be warranted (a ``positive 
90-day finding''), we are required to promptly commence a review of the 
status of the species concerned during which we will conduct a 
comprehensive review of the best available scientific and commercial 
information. In such cases, within 12 months of receipt of the 
petition, we shall conclude the review with a finding as to whether, in 
fact, the petitioned action is warranted. Because the finding at the 
12-month stage is based on a more thorough review of the available 
information, as compared to the narrow scope of review at the 90-day 
stage, a ``may be warranted'' finding does not prejudge the outcome of 
the status review.
    Under the ESA, a listing determination may address a ``species,'' 
which is defined to also include subspecies and, for any vertebrate 
species, any distinct population segment (DPS) that interbreeds when 
mature (16 U.S.C. 1532(16)). A joint NOAA-U.S. Fish and Wildlife 
Service (USFWS) policy clarifies the agencies' interpretation of the 
phrase ``distinct population segment'' for the purposes of listing, 
delisting, and reclassifying a species under the ESA (61 FR 4722; 
February 7, 1996). A species, subspecies, or DPS is ``endangered'' if 
it is in danger of extinction throughout all or a significant portion 
of its range, and ``threatened'' if it is likely to become endangered 
within the foreseeable future throughout all or a significant portion 
of its range (ESA sections 3(6) and 3(20), respectively, 16 U.S.C. 
1532(6) and (20)). Pursuant to the ESA and our implementing 
regulations, we determine whether species are threatened or endangered 
because of any one or a combination of the following five section 
4(a)(1) factors: (1) The present or threatened destruction, 
modification, or curtailment of habitat or range; (2) overutilization 
for commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) inadequacy of existing regulatory mechanisms; 
and (5) any other natural or manmade factors affecting the species' 
existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
    ESA-implementing regulations issued jointly by NMFS and the U.S. 
Fish and Wildlife Service (USFWS; 50 CFR 424.14(b)) define 
``substantial information'' in the context of reviewing a petition to 
list, delist, or reclassify a species as the amount of information that 
would lead a reasonable person to believe that the measure proposed in 
the petition may be warranted. In evaluating whether substantial 
information is contained in a petition, the Secretary must consider 
whether the petition: (1) Clearly indicates the administrative measure 
recommended and gives the scientific and any common name of the species 
involved; (2) contains detailed narrative justification for the 
recommended measure, describing, based on available information, past 
and present numbers and distribution of the species involved and any 
threats faced by the species; (3) provides information regarding the 
status of the species over all or a significant portion of its range; 
and (4) is accompanied by the appropriate supporting documentation in 
the form of bibliographic references, reprints of pertinent 
publications, copies of reports or letters from authorities, and maps 
(50 CFR 424.14(b)(2)).
    Court decisions have clarified the appropriate scope and 
limitations of the Services' review of petitions at the 90-day finding 
stage, in making a determination that a petitioned action ``may be'' 
warranted. As a general matter, these decisions hold that a petition 
need not establish a ``strong likelihood'' or a ``high probability'' 
that a species is either threatened or endangered to support a positive 
90-day finding.
    We evaluate the petitioner's request based upon the information in 
the petition including its references, and the information readily 
available in our files. We do not conduct additional research, and we 
do not solicit information from parties outside the agency to help us 
in evaluating the petition. We will accept the petitioner's sources and 
characterizations of the information presented, if they appear to be 
based on accepted scientific principles, unless we have specific 
information in our files that indicates

[[Page 9322]]

the petition's information is incorrect, unreliable, obsolete, or 
otherwise irrelevant to the requested action. Information that is 
susceptible to more than one interpretation or that is contradicted by 
other available information will not be dismissed at the 90-day finding 
stage, so long as it is reliable and a reasonable person would conclude 
it supports the petitioner's assertions. In other words, conclusive 
information indicating the species may meet the ESA's requirements for 
listing is not required to make a positive 90-day finding. We will not 
conclude that a lack of specific information alone negates a positive 
90-day finding, if a reasonable person would conclude that the unknown 
information itself suggests an extinction risk of concern for the 
species at issue.
    To make a 90-day finding on a petition to list a species, we 
evaluate whether the petition presents substantial scientific or 
commercial information indicating the subject species may be either 
threatened or endangered, as defined by the ESA. First, we evaluate 
whether the information presented in the petition, along with the 
information readily available in our files, indicates that the 
petitioned entity constitutes a ``species'' eligible for listing under 
the ESA. Next, we evaluate whether the information indicates that the 
species at issue faces extinction risk that is cause for concern; this 
may be indicated in information expressly discussing the species' 
status and trends, or in information describing impacts and threats to 
the species. We evaluate any information on specific demographic 
factors pertinent to evaluating extinction risk for the species at 
issue (e.g., population abundance and trends, productivity, spatial 
structure, age structure, sex ratio, diversity, current and historical 
range, habitat integrity or fragmentation), and the potential 
contribution of identified demographic risks to extinction risk for the 
species. We then evaluate the potential links between these demographic 
risks and the causative impacts and threats identified in section 
4(a)(1).
    Information presented on impacts or threats should be specific to 
the species and should reasonably suggest that one or more of these 
factors may be operative threats that act or have acted on the species 
to the point that it may warrant protection under the ESA. Broad 
statements about generalized threats to the species, or identification 
of factors that could negatively impact a species, do not constitute 
substantial information that listing may be warranted. We look for 
information indicating that not only is the particular species exposed 
to a factor, but that the species may be responding in a negative 
fashion; then we assess the potential significance of that negative 
response.
    Many petitions identify risk classifications made by other 
organizations or agencies, as evidence of extinction risk for a 
species. Risk classifications of the petitioned species by other 
organizations or made under other Federal or State statutes may be 
informative, but the classification alone may not provide the rationale 
for a positive 90-day finding under the ESA. Thus, when a petition 
cites such classifications, we will evaluate the source information 
that the classification is based upon, in light of the standards on 
extinction risk and impacts or threats discussed above.

Distribution and Life History of Alabama Shad

    The Alabama shad is a euryhaline, anadromous species that spawns in 
medium to large flowing rivers from the Mississippi River drainage to 
the Suwannee River, Florida. They once reached into freshwater systems 
as far inland as eastern Oklahoma, Iowa, and West Virginia. Present 
distributions extend up the Mississippi River drainage into eastern 
Arkansas and central Missouri. They are found in some Gulf coast 
drainages, but are thought to be extirpated from those drainages west 
of the Pascagoula drainage in Mississippi (Adams et al., 2000; Mettee 
and O'Neil, 2003; Boschung and Mayden, 2004). Although once abundant 
enough to support commercial fisheries in Alabama, Arkansas, Kentucky, 
Indiana, and Iowa, Alabama shad are rarely collected throughout much of 
their former range (Ross, 2001; Adams et al., 2000). Gunning and 
Suttkus (1990) report on collections between 1963 and 1988 in the Pearl 
River, Louisiana and Mississippi, in which the majority of individuals 
(384) were collected before 1965, with only 34 collected since then. 
None have been taken from the Pearl River since 1981 (Gunning and 
Suttkus, 1990; Ross, 2001). Barkuloo et al. (1993) report large 
declines in the Mobile River basin occurred shortly after new dams were 
built on the Alabama and lower Tombigbee rivers in the 1960s. Five 
adults have been captured in the basin in the past 25 years, and then 
only in years with very high river flows (Mettee and O'Neil, 2003), 
suggesting that no spawning population remains. The largest remaining 
population probably occurs in the Apalachicola River, Florida, 
downstream of the Jim Woodruff Lock and Dam (Barkuloo et al., 1993). 
Outside of Florida, spawning populations are thought to persist in the 
Choctawhatchee and Conecuh Rivers, Alabama; the Pascagoula River, 
Mississippi; the Ouachita River, Arkansas; and, the Missouri, 
Gasconade, Osage and Meramec Rivers, Missouri.
    Alabama shad belong to the family Clupeidae and are closely related 
to, as well as similar in appearance and life history to, the American 
shad (A. sapidissima). They also resemble the skipjack herring (A. 
chrysochloris), which occurs in the same areas. Defining 
characteristics of the Alabama shad are their upper jaw with a distinct 
median notch, and the number of gill rakers (41 to 48) on the lower 
limb of the anterior gill arch. Alabama shad differ from other members 
of their family in the same area in that the lower jaw does not 
protrude beyond the upper jaw, black spots are present along the length 
of the lower jaw, and the dorsal fin lacks an elongate filament.
    Alabama shad are a schooling species. Research in the Pascagoula 
River system indicates that Alabama shad shift between riverine 
habitats during their first year (age 0). In early summer (June to mid-
July) in the Pascagoula River system, small juveniles use sandbar 
habitats, then switch to open channel and steep bank habitats 
containing large woody debris in late summer and fall (Mickle, 2006). 
Within habitat types, they tend to select cooler water temperatures 
(Mickle, 2006). While little is known of the Alabama shad's thermal 
tolerance, alosids in general are notoriously sensitive to thermal 
stress (Beitinger et al., 2000; McCauley and Binkowski, 1982). Little 
is known of the species' behavior and habitat use in marine 
environments. Juveniles remain in fresh water for the first 6 to 8 
months of their lives, feeding on small fishes and invertebrates (Ross, 
2001). Adults broadcast spawn in the spring or early summer over coarse 
sand and gravel sediments swept by moderate currents when river 
temperatures are between 18 and 23 degrees Celsius. Males appear to 
enter the river at earlier dates and lower water temperatures than 
females (Laurence and Yerger, 1966). Male and female spawning site 
arrival also varies by age (Mettee and O'Neil, 2003). Adults likely do 
not feed during the spawning run; otherwise, they are thought to forage 
on small fish. Females become larger than males, reaching 18 inches 
(457 mm), while males reach 16.5 inches (419 mm). Age-2 adults are the 
most prevalent age class of spawning adults. Repeat spawning is common, 
but the percentage of returning spawners is highly variable among 
years. Annual fecundity ranges from 40,000 to 360,000

[[Page 9323]]

eggs per female. Juvenile growth rate is about 1.2 inches (30 mm) per 
month from July to September and then 0.4 inches (10 mm) per month 
until December. Juveniles enter the seawater in late summer/early 
autumn when they are about 2 to 5 inches (50 to 130 mm). Some natal 
homing tendency is evidenced by genetic differences among drainage 
basins (Bowen, 2005). The Alabama shad is relatively short lived (up to 
6 years).

Analysis of the Petition

    First, we evaluated whether the petition presented the information 
indicated in 50 CFR 424.14(b)(2). The petition clearly indicates the 
administrative measure recommended and gives the scientific and common 
name of the taxonomically valid species involved; contains a narrative 
justification for the recommended measure, describing the distribution 
of the species, as well as the threats faced by the species; and is 
accompanied by supporting documentation in the form of bibliographic 
references. However, the petition does not include information required 
under 50 CFR 424.14(b)(2)(ii-iii) on the past and present numbers of 
the species, or information regarding the status of the species over 
all or a significant portion of its range, other than conclusions and 
opinions. We have additional information in our files, acquired since 
our last evaluation of Alabama shad in 2004 and its designation as a 
Species of Concern, on the abundance and age structure of the 
Apalachicola population of Alabama shad, which we discuss in more 
detail below.
    The petition states that Alabama shad have likely experienced 
dramatic long-term population declines, as well as short-term 
population declines of as much as 30 percent, and attributes these 
trends to habitat loss and degradation caused by impoundments, 
pollution, dredging, and other factors. The petition also states that 
commercial fishing in the Ohio River was a threat historically, and 
even though there is no longer a commercial fishery, intentional 
eradication or indirect impacts of fishing may be contributing to the 
species' declining status. The petition states that it is unknown 
whether any occurrences of Alabama shad are ``appropriately 
protected,'' noting the lack of fish passage at locks and dams as a 
primary management concern, and cites lack of regulatory protections 
associated with status classifications assigned Alabama shad by 
NatureServe, NMFS, and the States of Mississippi, Alabama, and Georgia. 
Other factors, such as pollution, sedimentation, and drought, are cited 
in the petition as contributing to declines in shad populations. Thus, 
the petition states that four of the five causal factors in section 
4(a)(1) of the ESA are adversely affecting the continued existence of 
Alabama shad: Habitat modification and degradation due to dams, 
dredging, and pollution; overutilization in historical commercial 
fisheries and continued indirect effects from fishing and eradication 
programs; inadequacy of existing regulatory mechanisms associated with 
current status classifications; and other natural or manmade factors, 
such as pollution, sedimentation, and drought.

Information on Species Status

    The petition states that Alabama shad has undergone a major 
geographic contraction of its historical range, which originally 
spanned the Gulf Coast from the Suwannee River, Florida, to the 
Mississippi River, and westward in the Ouachita River system (Arkansas 
and Louisiana) to eastern Oklahoma. The species' current range is 
stated to include the Apalachicola River system below Jim Woodruff Lock 
and Dam in Florida; the Pascagoula River drainage in Mississippi; and, 
the Conecuh, Choctawhatchee, and Mobile Rivers in Alabama. The petition 
describes Alabama shad populations as small and states that the species 
is considered very rare in large portions of its historical range. The 
petition cites a NatureServe (2008) estimate that only 6 to 20 
populations of Alabama shad remain. The petition also includes an 
observation by Mettee et al. (1996) that there are only two known 
remaining spawning runs in the Mississippi River System, with other 
spawning runs occurring in the Florida Panhandle and southern Alabama, 
and the conclusions by Mettee and O'Neil (2003) that spawning 
populations of shad are ``relatively small.'' Though the petition 
describes Alabama shad populations as ``small'' and the species as 
``rare throughout its historic range'' and concludes that spawning 
populations are ``relatively small,'' it does not present estimates for 
historical or current abundance of Alabama shad for comparison and 
evaluation. While the petition states that 6 to 20 populations of 
Alabama shad exist today, it does not state the location of those 
populations, the size of the populations, or the number, locations, and 
size of historical Alabama shad populations for comparison.
    The petition cites various status classifications made by the 
International Union for Conservation of Nature (IUCN), the American 
Fisheries Society (AFS), NatureServe, and NMFS to support its assertion 
that Alabama shad should be listed as threatened or endangered under 
the ESA. We do not give any particular weight to classifications 
established by other scientific and conservation organizations, which 
may or may not be based on criteria that directly correspond to the 
listing standards of the ESA. However, we have reviewed and evaluated 
the underlying information used to develop the various classifications 
given to Alabama shad by entities listed in the petition.
    The petition cites the IUCN's classification of Alabama shad as 
``endangered,'' which the IUCN defines as ``a very high risk of 
extinction in the wild.'' The IUCN bases its species classifications on 
evidence indicating that the species meets any of the five general 
criteria (A through E) that relate to population size (A), rate of 
population decline (B), reductions in geographic range (C), specific 
population sizes relative to rates of decline (D), and quantification 
of extinction risk (E). Based on its 1996 assessment, the IUCN 
classified Alabama shad as endangered because it believed the species 
met one of the five criteria (B). Specifically, the IUCN assigned 
Alabama shad a generic criterion of ``B1+2e,'' which indicates (B) the 
extent of occurrence is estimated to be less than 5,000 km\2\ or the 
area of occupancy is estimated to be less than 500 km\2\, with (1) 
either severely fragmented populations or the species is known to exist 
at no more than five locations, and (2) continuing inferred, observed, 
or projected decline in (e) the number of mature individuals. However, 
this generic criterion does not describe how the 5,000 km\2\ area of 
occurrence or the 500 km\2\ area of occupancy were determined to be the 
thresholds below which a species is facing ``a very high risk of 
extinction'' and does not provide information on how the current areal 
extent of Alabama shad was determined. While the IUCN criterion 
indicates that the number of mature individuals is declining, no 
abundance estimates were provided to quantify that decline. In fact, 
the IUCN recently updated its classification of Alabama shad (version 
2010.4), relying on a more current 2007 assessment of the species 
(citing NatureServe as the ``assessor''), and reclassified it from 
``endangered'' to ``data deficient.'' While the IUCN notes declines in 
the population and geographic range of the species, it states in its 
justification of the current classification that ``there has been no 
quantification of the rate of

[[Page 9324]]

range or population decline'' of the Alabama shad (IUCN, 2010).
    NatureServe (2008) gave the species a rank of ``G3'' or 
``vulnerable'' and attributed the rank to the species' limited 
distribution in Gulf of Mexico tributaries, reduction in population due 
to the effects of dams in blocking spawning migration, and degradation 
of habitat by siltation and pollutants. The petition cites NatureServe 
(2008) in its assertion that Alabama shad have experienced as much as a 
30 percent population decline in the short term, with dramatic long-
term declines. NatureServe (2008) defines short-term trends for species 
as the observed, estimated, inferred, suspected, or projected short-
term trend over a period spanning the past 10 years or 3 generations 
(whichever is longer, up to a maximum of 100 years). The full 
description of the short-term trends for Alabama shad in the 
NatureServe (2008) source is ``declining to stable, with +/- 10 percent 
fluctuation to 30 percent decline'' and notes that while Alabama shad 
are ``probably'' declining, the ``rate of decline is unknown.'' 
NatureServe (2008) also describes range-wide trends over the ``long-
term'' (covering an approximately 200-year period) in very broad terms: 
``substantial decline to relatively stable (25 percent change to 75 
percent decline).'' The range that the percentage of population change/
decline represents is very large and demonstrates a great deal of 
uncertainty in the actual rate of change in Alabama shad populations, 
making reliable quantification of long-term population trends difficult 
at best. The ability to interpret NatureServe's (2008) quantification 
of long-term trends is further confounded because there is no 
description of how these percentages were determined. While NatureServe 
(2008) is cited in the petition as the major source presenting the 
declines in Alabama shad, the actual descriptions of the short- and 
long-term trends by NatureServe actually allow for stability and even 
some increases in Alabama shad populations.
    Alabama shad were designated as ``threatened'' (in imminent danger 
of becoming endangered throughout all or a significant portion of its 
range) by AFS in 2008 based on (1) present or threatened destruction, 
modification, or reduction of habitat or range, and (2) over-
exploitation for commercial, recreational, scientific, or educational 
purposes. The AFS designation does not provide any information on 
historical or current numbers, populations, or rates of decline, and 
also refers to NatureServe's (2008) ranking of ``G3/vulnerable'' 
(discussed in the previous section of this finding).
    As previously noted, NMFS transferred Alabama shad to the Species 
of Concern list from the Candidate Species list in 2004. The entirety 
of the scientific and commercial information presented in the petition 
on the apparent population decline of Alabama shad and the threats that 
contributed to the apparent decline were considered by NMFS in its last 
evaluation of Alabama shad in 2004 and resulted in its designation as a 
Species of Concern. Further, much of the information on the status and 
threats presented in the petition is included in the NMFS Species of 
Concern fact sheet for Alabama shad, which is publicly available on the 
Internet (http://www.nmfs.noaa.gov/pr/pdfs/species/alabamashad_detailed.pdf). The fact sheet describes the rationale for the Species 
of Concern designation, citing Alabama shad's rarity throughout much of 
its former range and on-going threats that may have contributed to its 
decline, such as dams, poor water quality, siltation, habitat 
alteration, dredging, bycatch, and thermal stress. By definition, a 
Species of Concern is one for which we have some concerns regarding 
status and threats, but for which insufficient information is available 
to indicate a need to list the species under the ESA. We believe that 
no new substantial information (information not already considered by 
NMFS in designating Alabama shad as a Species of Concern) is presented 
in the petition.
    In addition to these classifications by national and international 
organizations, Alabama shad has received several State classifications/
designations. Mississippi lists the Alabama shad as a ``Tier 1'' 
``species of greatest conservation need,'' defined as ``species that 
are in need of immediate conservation action and/or research because of 
extreme rarity, restricted distribution, unknown or decreasing 
population trends, specialized habitat needs, and/or habitat 
vulnerability. Some species may be considered critically imperiled and 
at risk of extinction/extirpation.'' Alabama also lists Alabama shad as 
a ``species of greatest conservation need'' with a priority of ``2.'' A 
priority of ``2'' is considered by Alabama to be a ``high conservation 
concern'' and is given to species that meet three of the following 
factors: Rarity; very limited, disjunct, or peripheral distribution; 
decreasing population trend/population viability problems; and/or, 
specialized habitat needs/habitat vulnerability due to natural/human-
caused factors. This designation notes that timely research and/or 
conservation action is needed. Neither Mississippi nor Alabama indicate 
which of the multiple factors resulted in the ``Tier 1'' and ``Priority 
2'' classifications, and no population abundance estimates were 
provided by either State. The shad is also listed as a ``species of 
special concern'' by the State of Georgia and is given a State ranking 
of ``S1,'' defined as ``critically imperiled in the State because of 
extreme rarity (5 or fewer occurrences).'' Georgia lists the State 
status of Alabama shad as ``threatened,'' defined as ``a species which 
is likely to become an endangered species in the foreseeable future 
throughout all or parts of its range.'' While Georgia's ``S1'' ranking 
indicates that there are ``5 or fewer occurrences'' in the State, it is 
unclear what constitutes an ``occurrence,'' and it does not provide 
information on population abundance.
    The classification of Alabama shad as ``data deficient,'' 
``vulnerable,'' ``threatened,'' and a ``Species of Concern'' by 
national and international organizations, as well as their designations 
as ``Tier 1'' and ``Priority 2'' ``species of greatest conservation 
need'' by Mississippi and Alabama, respectively, and an ``S1'' 
``threatened'' ``species of special concern'' by Georgia, demonstrate 
that there is general concern about the status of Alabama shad. 
However, it also demonstrates that there is no consensus on the 
severity of the decline and magnitude of the threats faced by Alabama 
shad. We reviewed the underlying information for these classifications 
and found that none of the sources cited in the petition provide 
current population sizes of Alabama shad or historical population sizes 
for comparison and insight into any rate of decline of the species that 
may be occurring.
    In addition to the information presented in the petition, we 
evaluated information in our own files, particularly new information 
obtained since our last review of Alabama shad in 2004 that resulted in 
its designation as a Species of Concern. Most of these sources 
contained in our files are also publicly available on the Internet.
    The first population abundances of Alabama shad, estimated for the 
Apalachicola River population, were published by Ely et al. (2008). The 
population sizes varied greatly during the 2005 to 2007 study period 
(approximately 2,000 to 26,000 Alabama shad), and were described by Ely 
et al. (2008) as lower than expected based on a comparison with 
American shad in the Savannah and Altamaha Rivers (between 100,000 and 
200,000

[[Page 9325]]

American shad). Given the similarities in life history characteristics 
of Alabama and American shad and the similarities in discharge, 
drainage area, and latitude between the Apalachicola River and the 
other Atlantic Coast rivers, the authors expected the populations of 
adult Alabama shad and American shad to be similar. Ingram (2007) 
compared growth and age class structure of Alabama shad in the 
Apalachicola River in 2005 and 2006 with studies conducted in 1967 and 
1972 and indicated that the current structure, with fewer age classes 
and an earlier age at maturity, was indicative of a declining 
population and asserted that ``concern over the long-term 
sustainability of Alabama shad populations appears to be justified.'' 
Ingram (2007) also noted that populations comprised of few year classes 
tend to rebound quickly when environmental conditions change 
(Rutherford et al., 1992), but also tend to be less stable than 
populations comprised of more year classes and may be extirpated under 
prolonged periods of degraded environment (Everhart and Youngs, 1981). 
Additionally, Ely et al. (2008) noted that fluctuations in abundance of 
American shad are well documented (Hattala et al., 1996; Atlantic 
States Marine Fisheries Commission, 1998; Moring, 2005) and variations 
in year-class strength typically observed in this genus suggest that 
populations of Alabama shad are capable of recovering quickly to 
historical levels under favorable conditions.
    The resilience of Alabama shad and the species' ability to respond 
positively to conservation efforts is evident in the Apalachicola-
Chattahoochee-Flint (ACF) River System. Beginning in 2005, a 
cooperative study supported by multiple local, academic, State, and 
Federal conservation partners, including NMFS, started tracking Alabama 
shad and other fish species in the Apalachicola River (USFWS, 2008; 
TNC, 2010; Ely et al., 2008). The study also evaluated the feasibility 
of passing fish upriver of the Jim Woodruff Lock and Dam (JWLD), 
located at the confluence of the Chattahoochee and Flint Rivers, which 
presents the first major impediment on the Apalachicola River to the 
upstream migration of Alabama shad to their historical spawning 
grounds. The results of this collaborative study showed that the 
existing lock could be used to pass fish upriver where they could 
potentially reproduce in great numbers. Based on these findings, in 
2008, the U.S. Army Corps of Engineers (USACE) began operating the lock 
at JWLD to allow fish passage. The locks are operated twice a day to 
correspond with the natural movement patterns of migrating fish during 
spawning seasons--February through May each year. Alabama shad have 
been found to pass upstream of the lock with 45 percent efficiency 
(Young, 2010) and, as a result, can access over 150 miles of historical 
habitat and spawning areas in the ACF River System for the first time 
in more than 50 years (TNC, 2010). The current 2010 population estimate 
for the ACF River System of 98,469 Alabama shad obtained as a result of 
this study (Young, 2010) is almost four times larger than the previous 
high estimate of 25,935 obtained in 2005 (Ely et al., 2008). Since age-
2 adults are the most prevalent age class of spawning adults, the large 
increase in the Alabama shad population in the Apalachicola in 2010 is 
likely a direct result of JWLD being operated for fish passage 
beginning in 2008.
    The information presented in the petition on the status and trends 
of Alabama shad populations does not present new substantial 
information indicating that listing as threatened or endangered under 
the ESA may be warranted. While the petition notes that Alabama shad 
populations are small and there has been an overall reduction in its 
geographic range, none of the sources cited provide current population 
sizes of Alabama shad or historical population sizes for comparison and 
insight into any rate of decline of the species that may be occurring. 
Further, the majority of the information contained in the petition was 
already considered in NMFS' 2004 evaluation of Alabama shad that 
resulted in its retention on the Species of Concern list. In addition 
to the petition, we also reviewed information in our own files. Since 
our evaluation in 2004, the first abundance estimates for Alabama shad 
were obtained in the Apalachicola River. The current 2010 estimate for 
that river is four times higher than the previous high estimate, likely 
evidence of the success of conservation efforts that resulted in fish 
passage at JWLD beginning in 2008. While we only have population 
estimates from the Apalachicola River, information on the status of the 
species contained in the petition and our files does not indicate that 
the listing of Alabama shad as threatened or endangered under the ESA 
may be warranted. We will next consider how threats facing Alabama shad 
may be contributing to their extinction risk.

Information on Threats to the Species

    We evaluated whether the information in the petition and contained 
in our files concerning the extent and severity of one or more of the 
ESA section 4(a)(1) factors suggests these impacts and threats may be 
posing a risk of extinction for Alabama shad that is cause for concern. 
The bulk of the information in the petition on threats is an overview 
of many of the past and ongoing categories of threats that are believed 
to have contributed to the decline of 404 aquatic, riparian, and 
wetland species in the Southeast. The majority of this information on 
threats is either general for all species in the Southeast, 
specifically linked to species other than Alabama shad, or 
characterized in areas where shad are not known to occur. The following 
discussion on threats focuses on the information presented in the 
section of the petition on Alabama shad.

Habitat Modification and Destruction

    The petition states that Alabama shad have experienced widespread 
declines because of loss of habitat to dams, rapid urbanization, 
pollution, and other factors (Mettee and O'Neil, 2003; Mirarchi et al., 
2004; NMFS, 2008). The petition states that shad have been cut off from 
many historical spawning areas by dams and locks (Robison and Buchanan, 
1988; Etnier, 1997; Mirarchi et al., 2004) and provides the example of 
dams built on the lower Tombigbee and Alabama Rivers in the 1960s 
resulting in ``steep declines in shad populations'' in the Mobile River 
Basin (Barkuloo et al., 1993; Mettee and O'Neil, 2003; NMFS, 2008; 
NatureServe, 2008). The petition also states that agricultural 
operations, dredging, and possible reservoir construction for water 
supply on major tributaries are major threats to remaining populations 
in Alabama (Mettee, 2004) and that these threats likely apply 
throughout the species' range. NMFS listed dredging as a factor for the 
Alabama shad's decline in its rationale for the 2004 Species of Concern 
designation. Dredging can remove necessary spawning substrate, increase 
siltation, and reduce water quality. However, neither the petition nor 
our files contain specific information on the nature or the degree of 
threat to Alabama shad from dredging. We also noted the presence of 
locks and dams as factors in the decline of Alabama shad in our Species 
of Concern designation, including the specific example cited in the 
petition of reduction in shad populations in the Mobile River Basin 
resulting from dam construction on the Tombigbee and

[[Page 9326]]

Alabama Rivers. We further noted in our evaluation of the impacts of 
dams on Alabama shad that the population in the Pascagoula River is 
small, even though that river lacks dams and other barriers to 
migration. While dredging and dams represent generalized threats to the 
species, as stated in the petition and by us in our rationale for 
designating Alabama shad as a Species of Concern, the petition does not 
provide substantial information detailing how the significance of these 
threats to the species indicates that listing may be warranted. The 
petition cites reservoir construction as a threat to the species, with 
recent information that new reservoirs are currently proposed on Murder 
Creek, the Little Choctawhatchee, and on smaller tributaries ``that 
further threaten the shad'' (SFC and CBD, 2010). However, the petition 
does not state whether Alabama shad are present in these locations and 
does not describe, either quantitatively or qualitatively, the 
anticipated effects (e.g., blockage of spawning migrations or 
modifications of downstream habitat) to Alabama shad from the proposed 
reservoirs. Further, the petition asserts that habitat loss due to 
rapid urbanization and pollution has contributed to the widespread 
declines in Alabama shad populations, but provides no explanation or 
examples describing how or where this has occurred. Therefore, we find 
that the petition does not present new substantial information on the 
threat to Alabama shad from habitat destruction and modification 
indicating that listing may be warranted.

Overutilization

    The petition states that commercial fishing in the Ohio River was a 
threat historically, but with the decline in fish numbers, there is no 
longer a commercial fishery (NatureServe, 2008). The petition cites AFS 
(Jelks et al., 2008), which classified this species as threatened in 
part because of over-exploitation for commercial, recreational, 
scientific, or educational purposes, including intentional eradication 
or indirect impacts of fishing. As part of the rationale for the 
Alabama shad's 2004 Species of Concern designation, we noted that early 
commercial harvest of Alabama shad may have contributed to its decline, 
but that the catches were small and the fishery was short lived. NMFS 
(2004) also noted that threats to Alabama shad may include bycatch 
(i.e., indirect impacts of fishing, as stated by the petition), but 
neither the petition nor our files provide additional details on the 
nature or degree of the threat of bycatch to Alabama shad. There is no 
information in our files, nor does the petition provide sources or 
citations, for the historical or current existence of a recreational 
fishery of Alabama shad, scientific or educational activities that 
could threaten shad, or the nature or location of programs intended to 
eradicate the species. Therefore, we find the petition does not present 
new substantial information on the threat to Alabama shad from 
overutilization indicating that listing may be warranted.

Inadequacy of Existing Regulatory Mechanisms

    The petition states that it is not known whether any occurrences of 
Alabama shad are appropriately protected and cites NatureServe (2008) 
that a ``primary management need is the creation of fishways so that 
shad can migrate through or around locks and dams.'' Dams are 
documented to block anadromous species, such as Alabama shad, from 
accessing habitat upstream, while also degrading habitat downstream. 
Hydropower dams are regulated by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act (FPA). The FPA provides 
for cooperation between FERC and other Federal and State agencies, 
including resource agencies, in licensing and relicensing power 
projects, including the authority to issue mandatory fishway 
prescriptions. However, the timing of project relicensing (once every 
30 to 50 years per facility) and the existence of dams, such as those 
operated by the Army Corps of Engineers, to which the FPA does not 
apply, can hinder the efficacy of the FPA. Even where fish passage 
currently exists, passage efficiency varies and is often less than 100 
percent. The petition does not quantify the amount of historical 
Alabama shad habitat that is blocked by dams or the reductions in 
abundance of shad resulting from the lack of passage at dams. However, 
the presence of dams and the lack of passage is recognized by NMFS as a 
general threat to Alabama shad and was documented as part of the 
rationale for its 2004 Species of Concern designation. As part of the 
proactive conservation initiative under the Species of Concern program, 
we are a partner in the multi-agency collaborative project at JWLD that 
resulted in the USACE operating the lock for purposes of fish passage 
during spawning season. This project appears to have been highly 
successful at enhancing the Alabama shad population in the ACF River 
System.
    As previously discussed, the petition notes classifications of the 
Alabama shad by various States within its range. Mississippi lists the 
shad as a Tier 1 ``species of greatest conservation need.'' This 
designation provides no regulatory protection for the shad. Alabama 
also lists the species as a ``species of greatest conservation need'' 
with a priority of ``2.'' Although the State of Alabama has developed a 
``comprehensive wildlife strategy,'' this strategy is entirely 
voluntary and provides no regulatory protection for the shad. The 
petition also states that there is no evidence that adherence to the 
strategy will ensure the survival and recovery of the shad. The shad is 
also listed as a species of special concern by the State of Georgia and 
NMFS, though these designations, like the others, do not provide any 
regulatory protection. Other than fish passage at dams discussed in the 
previous section, the petition does not indicate what threats require 
adequate regulation by these States or NMFS. Therefore, we have 
determined that information in the petition and contained in our files 
does not constitute substantial information indicating existing 
regulatory mechanisms are inadequate to prevent, or are contributing 
to, the extinction risk for Alabama shad to the extent that listing as 
threatened or endangered under the ESA may be warranted.

Other Natural or Manmade Factors

    The petition lists pollution ``from a variety of sources'' and 
drought as additional threats to Alabama shad. As stated in the 
discussion of habitat modification and destruction, the petition cites 
Mettee (2004), which lists increased sedimentation, pesticide runoff 
from agricultural operations, and prolonged drought as major threats to 
populations in Alabama, and Metee and O'Neil (2003), which lists 
siltation and water pollution as causes of decreasing shad populations. 
Siltation and poor water quality are already documented as part of the 
rationale for the Alabama shad's 2004 Species of Concern designation by 
NMFS, and the petition does not provide additional information 
indicating the significance of these generalized threats to Alabama 
shad. Therefore, there is no new substantial information indicating 
listing may be warranted as a result of these threats. Prolonged 
drought is recognized as a potential threat to riverine and anadromous 
species, as it can decrease water depths and velocity, increase thermal 
stress, and exacerbate existing water quality issues. However, the 
petition does not present information that indicates the extent to 
which Alabama shad have been affected by drought or evaluate how their 
current

[[Page 9327]]

extinction risk would be increased to an unacceptable level by the 
onset of future droughts. Therefore, we find that the petition does not 
present new substantial information on the threat to Alabama shad from 
other natural and manmade factors, such as water pollution, siltation 
and drought, indicating listing as threatened or endangered under the 
ESA may be warranted.

Petition Finding

    We have reviewed the petition, the literature cited in the 
petition, and other literature and information contained in our files. 
We find that the petition does not present substantial scientific or 
commercial information indicating that the requested listing actions 
may be warranted. Alabama shad is currently designated as a NMFS 
Species of Concern. We periodically review the species on the Species 
of Concern list to evaluate whether they should be retained or removed 
from the list or proposed for listing under the ESA. For the Alabama 
shad, NMFS is currently scheduled to release a Species of Concern 
review in 2011.

References Cited

    A complete list of all references is available upon request from 
the Protected Resources Division of the NMFS Southeast Regional Office 
(see ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: February 11, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2011-3628 Filed 2-16-11; 8:45 am]
BILLING CODE 3510-22-P