[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Proposed Rules]
[Pages 35701-35732]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12743]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 150818735-6236-01]
RIN 0648-BF28


Endangered and Threatened Species; Designation of Critical 
Habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay 
Distinct Population Segments of Atlantic Sturgeon

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, the National Marine Fisheries Service (NMFS), propose to 
designate critical habitat for the Gulf of Maine, New York Bight, and 
Chesapeake Bay Distinct Population Segments (DPSs) of Atlantic sturgeon 
(Acipenser oxyrinchus oxyrinchus). The specific areas proposed for 
designation include approximately 244 kilometers (152 miles) of aquatic 
habitat in rivers in Maine, New Hampshire, and Massachusetts for the 
Gulf of Maine DPS, approximately 547 kilometers (340 miles) of aquatic 
habitat in rivers in Connecticut, Massachusetts, New York, New Jersey, 
Pennsylvania, and Delaware for the New York Bight DPS, and 
approximately 729 kilometers (453 miles) of aquatic habitat in rivers 
in Maryland, Virginia, and the District of Columbia for the Chesapeake 
Bay DPS of Atlantic sturgeon. We are soliciting comments from the 
public on all aspects of the proposal, including information on the 
economic, national security, and other relevant impacts of the proposed 
designations, as well as the benefits to the DPSs.

DATES: Comments on this proposed rule must be received by September 1, 
2016.
    Public hearings and public information meetings: We will hold two 
public hearings and two public informational meetings on this proposed 
rule. We will hold a public informational meeting from 2 to 4 p.m., in 
Annapolis, Maryland on Wednesday, July 13 (see ADDRESSES). A second 
public informational meeting will be held from 3 to 5 p.m., in 
Portland, Maine on Monday, July 18 (see ADDRESSES). We will hold two 
public hearings, from 3 to 5 p.m. and 6 to 8 p.m., in Gloucester, 
Massachusetts on Thursday, July 21 (see ADDRESSES).

ADDRESSES: You may submit comments, identified by the NOAA-NMFS-2015-
0107, by either of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0107, Click the ``Comment Now!'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Kimberly B. Damon-Randall, Assistant Regional 
Administrator, Protected Resources Division, NMFS, Greater Atlantic 
Regional Office, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by us. All comments received are a part of the 
public record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. We will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Public informational meetings and public hearings: The July 13, 
2016, public informational meeting will be held at the Environmental 
Protection Agency, Information and Conference Center, 410 Severn 
Avenue, Annapolis, MD 21403. The July 18, 2016, public informational 
meeting will be held at the Gulf of Maine Research Institute, Cohen 
Center, 350 Commercial Street, Portland, Maine 04101. The July 21, 
2016, public hearings will be held at the NMFS, Greater Atlantic Region 
Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. People 
needing reasonable accommodations in order to attend and participate or 
who have questions about the public

[[Page 35702]]

hearings should contact Lynn Lankshear, NMFS, Greater Atlantic Region 
Fisheries Office (GARFO), as soon as possible (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Lynn Lankshear, NMFS, GARFO at 978-
282-8473; Julie Crocker, NMFS, GARFO at 978-282-8480; or Lisa Manning, 
NMFS, Office of Protected Resources at 301-427-8466.

SUPPLEMENTARY INFORMATION:  In accordance with section 4(b)(2) of the 
ESA (16 U.S.C. 1533(b)(2)) and our implementing regulations (50 CFR 
424.12), this proposed rule is based on the best scientific information 
available concerning the range, biology, habitat, and threats to the 
habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs 
of Atlantic sturgeon. We have reviewed the information (e.g., provided 
in reports, peer-reviewed literature, and technical documents) and have 
used it to identify the physical and biological features essential to 
the conservation of each DPS, the specific areas within the occupied 
areas that contain the essential physical and biological features that 
may require special management protection, the federal activities that 
may impact those features, and the potential impacts of designating 
critical habitat for each DPS. We have gathered this information for 
all three DPSs into a single document, the Draft Biological Information 
and ESA section 4(b)(2) Source Document. The economic impacts of the 
proposed critical habitat designations for each DPS are described in 
the document titled, Draft Economic Impact Analysis of Critical Habitat 
Designation for the Gulf of Maine, New York Bight, and Chesapeake Bay 
Distinct Population Segments of Atlantic Sturgeon (Acipenser oxyrinchus 
oxyrinchus), which was prepared by King and Associates, Incorporated. 
These supporting documents are available on the Federal eRulemaking 
Portal at http://www.regulations.gov. Electronic copies can also be 
obtained at http://www.greateratlantic.fisheries.noaa.gov/protected/atlsturgeon/index.html or upon request (see ADDRESSES).
    We invite the submission of information that may help to identify 
other physical or biological features. For example, while we know that 
there are specific estuarine areas that sturgeon often use for foraging 
(e.g., the mouth of the Merrimack and Saco rivers), and we can identify 
aggregation areas (e.g., off of western Long Island, New York) and 
general movement patterns in the marine environment (e.g., typically 
within the 50 meter depth contour) to and from estuarine areas, we 
could not identify what the specific features are of these habitats 
that make them important to sturgeon and that may require special 
management.

Background

    Under section 4 of the ESA, critical habitat shall be specified to 
the maximum extent prudent and determinable at the time a species is 
listed as threatened or endangered (16 U.S.C. 1533(b)(6)(C)). We 
concluded that critical habitat was not determinable for the Gulf of 
Maine, New York Bight, and Chesapeake Bay DPSs when we published the 
final listing rule (77 FR 5880, February 6, 2012). However, we 
anticipated that critical habitat would be determinable in the future, 
given on-going research. We, therefore, announced in the final rule 
that we would propose critical habitat for each DPS in a separate 
rulemaking.
    Section 3(5)(A) of the ESA defines critical habitat as the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protections, and specific areas 
outside the geographical area occupied by the species at the time it is 
listed that are essential for the conservation of the species (16 
U.S.C. 1532(5)(A)). Conservation is defined in section 3(3) of the ESA 
as ``. . . to use, and the use of, all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no longer 
necessary . . .'' (16 U.S.C. 1532(3)). Therefore, critical habitat is 
the habitat essential for the species' recovery. However, section 
3(5)(C) of the ESA clarifies that except in those circumstances 
determined by the Secretary, critical habitat shall not include the 
entire geographical area which can be occupied by the threatened or 
endangered species.
    As described in section 4(b)(2) of the ESA, we are required to 
designate critical habitat based on the best available scientific data 
and after taking into consideration the economic impact, impact on 
national security, and any other relevant impact, of specifying any 
particular area as critical habitat. Section 4(b)(2) provides us with 
discretion to exclude particular areas from a designation if the 
benefits of excluding that area outweigh the benefits of including it 
in the designation, unless failure to designate such areas as critical 
habitat will result in the extinction of the species. Finally, section 
4(a)(3)(B) prohibits designating 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 (INRMP) prepared under section 101 of the 
Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that 
such plan provides a conservation benefit to the species, and its 
habitat, for which critical habitat is proposed for designation. 
Although not expressly stated in section 4(b)(2), our regulations 
clarify that critical habitat shall not be designated within foreign 
countries or in other areas outside of United States jurisdiction (50 
CFR 424.12(g)).
    Once critical habitat is designated, section 7(a)(2) of the ESA 
requires Federal agencies to ensure that any action they fund, 
authorize or carry out is not likely to destroy or adversely modify 
that habitat (16 U.S.C. 1536(a)(2)). This requirement is in addition to 
the section 7(a)(2) requirement that Federal agencies ensure that their 
actions are not likely to jeopardize the continued existence of ESA-
listed species. Specifying the geographic location of critical habitat 
also facilitates implementation of section 7(a)(1) of the ESA by 
identifying areas where Federal agencies can focus their conservation 
programs and use their authorities to further the purposes of the ESA. 
Critical habitat requirements do not apply to citizens engaged in 
activities on private land that do not involve a Federal agency. 
However, designating critical habitat can help focus the efforts of 
other conservation partners (e.g., State and local governments, 
individuals and nongovernmental organizations).
    Accordingly, our step-wise approach for identifying potential 
critical habitat areas for the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs included the following: (1) Identify the physical 
and biological features essential to the conservation of the DPS and 
which may require special management considerations or protection; (2) 
identify specific areas where those features occur within the occupied 
geographic range of a particular DPS; (3) identify any unoccupied 
habitat essential to the conservation of a particular DPS; (4) consider 
economic, national security, or any other impacts of designating 
critical habitat and determine whether to exercise our discretion to 
exclude any particular areas; and (5) determine whether any area that 
contains essential

[[Page 35703]]

features is covered under an INRMP that provides a conservation benefit 
to the DPS.

Biology and Habitat of the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs of Atlantic Sturgeon

    Although there is considerable variability among species, all 
sturgeon species (order Acipenseriformes) have some common life history 
traits. They all: (1) Occur within the Northern Hemisphere; (2) spawn 
in freshwater over hard bottom substrates; (3) generally do not spawn 
annually; (4) are benthic foragers; (5) mature relatively late and are 
relatively long lived; and, (6) are relatively sensitive to low 
dissolved oxygen levels (Dees, 1961; Vladykov and Greeley, 1963; 
Klyashtorin, 1976; Bemis and Kynard, 1997; Sulak and Randall, 1999; 
Billard and Lecointre, 2001; Secor and Niklitschek, 2002; Pikitch et 
al., 2005).
    Atlantic sturgeon have all of these traits. They occur along the 
eastern coast of North America from Hamilton Inlet, Labrador, Canada, 
to Cape Canaveral, Florida, USA (Bigelow and Welsh, 1924; Dees, 1961; 
Vladykov and Greeley, 1963; Scott and Scott, 1988; NMFS and USFWS, 
2007; T. Savoy, CT DEEP, pers. comm.). They have a lifespan of up to 60 
years, although the typical lifespan is probably much shorter (Sulak 
and Randall, 2001; Balazik et al., 2010). As described in the Status 
Review, Atlantic sturgeon reach maturity at about 5 to 34 years of age, 
after years of moving between marine waters and coastal estuaries, and 
spawn in freshwater of tidal-affected rivers every 1 to 5 years (males) 
or 2 to 5 years (females) (NMFS and USFWS, 2007). Analysis of stomach 
contents for adults, subadults (i.e., sexually immature Atlantic 
sturgeon that have emigrated from the natal estuary), and juveniles 
(i.e., sexually immature Atlantic sturgeon that have not yet emigrated 
from the natal estuary) confirms that Atlantic sturgeon are benthic 
foragers (Ryder, 1888; Bigelow and Schroeder, 1953; Johnson et al., 
1997; Secor et al., 2000; NMFS and USFWS, 2007; Guilbard et al., 2007; 
Hatin et al., 2007; Savoy, 2007; Dzaugis, 2013; McLean et al., 2013).
    An anadromous species, Atlantic sturgeon are spawned in freshwater 
of rivers that flow into a coastal estuary. Tagging records and the 
relatively low rate of gene flow reported in population genetic studies 
provide evidence that Atlantic sturgeon return to their natal river to 
spawn (NMFS and USFWS, 2007). Spawning sites are well-oxygenated areas 
with flowing water ranging in temperature from 13 [deg]C to 26 [deg]C, 
and hard bottom substrate such as cobble, coarse sand, hard clay, and 
bedrock (Ryder, 1888; Dees, 1961; Vladykov and Greeley, 1963; Scott and 
Crossman, 1973; Gilbert, 1989; Smith and Clugston, 1997; Bain et al. 
2000; Collins et al., 2000; Caron et al., 2002; Hatin et al., 2002; 
Mohler, 2003; Greene et al., 2009; Balazik et al. 2012; Hager et al. 
2014). Water depth leading to spawning sites may be highly variable. 
Since the exact location of spawning is unknown, spawning depth is also 
uncertain. Atlantic sturgeon in spawning condition have been tracked 
and captured near presumed spawning habitat at depths up to 27 m 
(Borodin 1925; Dees 1961; Scott and Crossman 1973; Shirey et al. 1999; 
Bain et al. 2000; Hatin et al., 2002; Balazik et al., 2012; Hager et 
al., 2014).
    Within minutes of being fertilized, the eggs become sticky and 
adhere to the substrate for the relatively short and temperature-
dependent period of larval development (Ryder, 1888; Vladykov and 
Greeley, 1963; Murawski and Pacheco, 1977; Smith et al., 1980; Van den 
Avyle, 1984; Mohler, 2003). In hatchery studies, hatching occurred 
approximately 60 hours after egg deposition at water temperatures of 20 
[deg]C to 21 [deg]C and 96 hours after egg deposition with a water 
temperature of approximately 18 [deg]C (Smith et al., 1980; J. 
Fletcher, USFWS pers. comm. in Mohler, 2003).
    Larval Atlantic sturgeon (i.e., less than 4 weeks old, with total 
lengths less than 30 mm; Van Eenennaam et al., 1996) are assumed to 
inhabit the same areas where they were spawned and live at or near the 
bottom (Ryder, 1888; Smith et al., 1980; Bain et al., 2000; Kynard and 
Horgan, 2002; Greene et al., 2009). The best available information for 
behavior of larval Atlantic sturgeon is described from hatchery 
studies. Upon hatching, larvae are nourished by the yolk sac, are 
mostly pelagic (e.g., exhibit a ``swim-up and drift-down'' behavior in 
hatchery tanks; Mohler, 2003), and move away from light (i.e. negative 
photo-taxis; Kynard and Horgan, 2002; Mohler, 2003). Within days, 
larvae exhibit more benthic behavior until the yolk sac is absorbed at 
about 8 to 10 days post-hatching (Kynard and Horgan, 2002; Mohler, 
2003). Post-yolk sac larvae occur in the water column but feed at the 
bottom of the water column (Mohler, 2003; Richardson et al., 2007).
    The next phase of development, referred to as the juvenile stage, 
lasts months to years in brackish waters of the natal estuary (Hatin et 
al., 2007; NMFS and USFWS, 2007; Greene et al., 2009; Calvo et al., 
2010; Schueller and Peterson, 2010). Juveniles occur in oligohaline 
waters (salinity of 0.5 to 5 parts per thousand) and mesohaline waters 
(salinity of 5 to 18 parts per thousand) of the natal estuary during 
growth and development. They will eventually move into polyhaline 
waters (salinity of 18-30 parts per thousand) before emigrating to the 
marine environment. Larger, presumably older, juveniles occur across a 
broader salinity range than smaller, presumably younger, juveniles 
(Hatin et al., 2007; McCord et al., 2007; Munro et al., 2007; NMFS and 
USFWS, 2007; Sweka et al., 2007; Greene et al., 2009; Calvo et al., 
2010).
    The distribution of Atlantic sturgeon juveniles in the natal 
estuary is a function of physiological development and habitat 
selection based on water quality factors of temperature, salinity, and 
dissolved oxygen, which are inter-related environmental variables. In 
laboratory studies, juveniles less than a year old (also known as 
young-of-year) had reduced growth at 40 percent dissolved oxygen 
saturation with salinity of 8 and 15 parts per thousand and temperature 
at 12 [deg]C, 20 [deg]C, and 28 [deg]C. They grew best at 70 percent 
dissolved oxygen saturation with salinity of 8 and 15 parts per 
thousand and temperature of 12 [deg]C and 20 [deg]C (i.e., dissolved 
oxygen concentrations greater than 6.5 mg/L), and selected for 
conditions that supported growth (Niklitschek and Secor, 2009; 
Niklitschek and Secor, 2010). Similar results were obtained for age-1 
juveniles (i.e., greater than 1 year old and less than 2 years old), 
which have been shown to tolerate salinities of 33 parts per thousand 
(e.g., a salinity level associated with seawater), but grow faster in 
lower salinity waters (Niklitschek and Secor, 2009; Allen et al., 
2014).
    Once suitably developed, Atlantic sturgeon leave the natal estuary 
and enter marine waters (i.e., waters with salinity greater than 30 
parts per thousand) which marks the beginning of the subadult life 
stage. In the marine environment, subadults mix with adults and 
subadults from other river systems (NMFS and USFWS, 2007; Grunwald et 
al., 2008; Dunton et al., 2010; Erickson et al., 2011; Dunton et al., 
2012; Wirgin et al., 2012; Waldman et al., 2013; O'Leary et al., 2014, 
Wirgin et al., 2015a; Wirgin et al., 2015b). Atlantic sturgeon travel 
long distances in marine waters, aggregate in both ocean and estuarine 
areas at certain times of the year, and exhibit seasonal coastal 
movements in the spring and fall (NMFS and USFWS, 2007; Dunton et al., 
2010; Dunton et al., 2012; Erickson

[[Page 35704]]

et al., 2011; Oliver et al., 2013; Wippelhauser and Squiers, 2015). 
Existing and new technologies are providing additional information for 
the life history and distribution of the Atlantic sturgeon in marine 
waters (Nelson et al., 2013; Breece et al., 2016). However, there is 
still a paucity of data to inform distribution of subadult and adult 
Atlantic sturgeon within the marine environment and their habitat use.
    The exact spawning locations for Gulf of Maine, New York Bight and 
Chesapeake Bay DPS Atlantic sturgeon are unknown but inferred based on 
the location of freshwater, hard substrate, water depth, tracking of 
adults to upriver locations and the behavior of adults at those 
locations, capture of young-of-year and, in limited cases, larvae, and 
historical accounts of where the caviar fishery occurred. Based on one 
or more of these lines of evidence, multiple sites have been identified 
within many of the rivers used for spawning (NMFS and USFWS, 2007; 
Simpson, 2008; Hager, 2011; Austin, 2012; Balazik et al., 2012; Breece 
et al., 2013). Spawning sites at different locations within the tidal-
affected river would help to ensure successful spawning given annual 
changes in the location of the salt wedge.
    Male Atlantic sturgeon in spawning condition have been observed to 
stage in more saline waters of the coastal estuary before moving 
upriver once the water temperature reaches approximately 6 [deg]C (43 
[deg]F). They may spend weeks moving upstream and downstream of the 
presumed spawning area(s) before moving back downriver to the lower 
estuary and residing there until outmigration in the fall. In contrast, 
spawning females move upriver when temperatures are closer to 12 [deg]C 
to 13 [deg]C (54 [deg] to 55 [deg] F), return downriver relatively 
quickly, and may leave the estuary and travel to other coastal 
estuaries until outmigration to marine waters in the fall (Smith et 
al., 1982; Dovel and Berggren, 1983; Smith, 1985; Bain, 1997; Bain et 
al., 2000; Collins et al., 2000; NMFS and USFWS, 2007; Greene et al., 
2009; Balazik et al., 2012; Breece et al., 2013).
    There is a growing body of evidence that some Atlantic sturgeon 
river populations have two spawning seasons comprised of different 
spawning adults (Balazik and Musick, 2015). Evidence of fall spawning 
for the Carolina and South Atlantic DPSs was available when the five 
Atlantic sturgeon DPSs were listed under the ESA (77 FR 5914; Smith et 
al., 1984; NMFS and USFWS 1998; Collins et al., 2000). Since the 
listings, additional evidence of fall as well as spring spawning has 
been obtained for the Chesapeake Bay DPS (Balazik et al., 2012; Hager 
et al. 2014; Kahn et al., 2014). Spring is the only currently known 
spawning period for the Gulf of Maine and New York Bight DPSs. However, 
an 1870's report of Atlantic sturgeon spawning during August in the 
Hudson River (Dovel and Berggren, 1983) and other historical 
information (Borodin, 1925; Balazik and Musick, 2015) suggests spring 
and fall spawning runs were typical, and may still occur in many areas 
of the Atlantic sturgeon's range. Given seasonal changes in the 
location of the salt-wedge for estuarine systems, it is likely that 
fall spawning would occur or would have occurred further upstream than 
the locations for spring spawning in rivers.
    In addition to providing access to spawning habitat, estuaries 
provide foraging opportunities for subadult and adult Atlantic 
sturgeon. Stomach content analysis of Atlantic sturgeon captured in 
coastal estuaries confirm that sturgeon are foraging in coastal 
estuaries (Hatin et al., 2007; Savoy, 2007; Calvo et al., 2010; 
Wippelhauser, 2012; Dzaugis, 2013; McLean et al., 2013; McLean et al., 
2014). The occurrence of subadult and adults in association with the 
salt front (Brundage and Meadows, 1982; Savoy and Shake, 1993; Collins 
et al. 2000; Savoy and Pacileo, 2003; Hatin et al., 2007; Calvo et al., 
2010; Hager, 2011; Balazik, 2012; Breece et al., 2013), a biologically-
rich area of estuaries, also suggests use of estuarine waters for 
seasonal foraging. At least some Atlantic sturgeon subadults and adults 
move between estuarine environments in the spring through fall (Savoy 
and Pacileo, 2003; Simpson, 2008; Collins et al., 2000; Balazik et al., 
2012).
    The directed movement of subadult and adult Atlantic sturgeon to 
coastal estuaries in the spring is reversed in the fall (NMFS and 
USFWS, 2007; Greene et al., 2009; Hager, 2011; Erickson et al., 2011; 
Balazik et al., 2012; Wippelhauser, 2012; Oliver et al., 2013). The 
whereabouts of these fish once they leave coastal estuaries is 
uncertain. Atlantic sturgeon aggregate off of Long Island, New York and 
off of the Virginia/North Carolina coastline (Laney et al., 2007; 
Dunton et al., 2015). Others have been tracked to the southern extent 
of the range (T. Savoy, CT DEEP, pers. comm.) while at least one was 
tracked to the more northern area of the subspecies range, the Back 
River, Maine, in winter (G. Zydlewski, Univ. of Maine, pers. comm.). 
Two adults originally tagged in the Delaware River were detected in the 
Appomattox River, Virginia (C. Hager, Chesapeake Scientific, pers. 
comm.) during the winter. A recent study of Atlantic sturgeon tracked 
in the Delaware Bay found that some of the fish migrating from the 
estuary in the fall remained in nearby coastal marine waters within a 
plume of water flowing out from the estuary, suggesting a continued 
affinity with the estuary even after emigrating from the estuary proper 
(Oliver et al., 2013). Further work suggests Atlantic sturgeon 
distribution in the marine environment is affected more by the 
characteristics of the water (e.g., eddies, coastal upwelling, 
temperature) than characteristics of the landscape (e.g., depth, 
substrate) (Breece et al., 2016).
    To identify specific habitats used by an Atlantic sturgeon DPS, we 
considered available information that described: (1) Capture location 
and/or tracking locations of a subadult or adult Atlantic sturgeon 
identified to its DPS by genetic analysis; (2) capture location and/or 
tracking locations of a subadult or adult Atlantic sturgeon identified 
to its DPS based on the presence of a tag that was applied when the 
sturgeon was captured as a juvenile in its natal estuary; (3) capture 
or detection location of adults in spawning condition (i.e., extruding 
eggs or milt) or post-spawning condition (e.g., concave abdomen for 
females); (4) capture or detection of young-of year and other juvenile 
age classes; and, (5) collection of eggs or larvae. In the case of 
estuaries of known spawning rivers, we assumed based on the available 
information that a portion of the subadults and adults present 
originated from that river and, thus, the habitats used by subadults 
and adults in a spawning river were indicative of habitats used by the 
DPS which spawned in the river. Previous studies have demonstrated that 
a combination of microsatellite and mitochondrial DNA analyses provide 
the most accurate information to identify an Atlantic sturgeon to its 
DPS, and using mitochondrial analysis, alone, provides much lower 
assignment accuracy given the prevalence of a common Atlantic sturgeon 
haplotype (NMFS and USFWS, 2007; Wirgin et al., 2012; Waldman et al., 
2013). Therefore, when reviewing the available information on habitats 
used by Atlantic sturgeon, we also considered what genetic analyses 
were used to assign the sampled sturgeon to its DPS of origin.
    The Kennebec River was the only known spawning river for the Gulf 
of Maine DPS when the DPS was listed as threatened (NMFS and USFWS, 
2007; 77 FR 5880, February 6, 2012). Spawning has since been confirmed 
in the Androscoggin River (Wippelhauser, 2012). The Brunswick Dam at 
Pejepscot

[[Page 35705]]

Falls, the head-of-tide, is the upstream limit of Atlantic sturgeon 
distribution in the Androscoggin River. The dam is located 
approximately 10 kilometers upstream of the confluence of the Kennebec 
and Androscoggin rivers (ASMFC, 1998; NMFS and USFWS, 2007; NMFS, 2013; 
Wippelhauser and Squiers, 2015). The Lockwood Dam at river kilometer 
103 is the current upstream limit for Atlantic sturgeon in the Kennebec 
River; it is located at the site of a natural falls (NMFS and USFWS, 
2007). From 1837 to 1999, the Edwards Dam was the upstream limit of 
Atlantic sturgeon in the Kennebec River. Located near the head-of-tide, 
approximately 29 kilometers downstream of the Lockwood Dam at Augusta, 
the Edwards Dam (rkm 74) prevented Atlantic sturgeon from accessing 
historical habitat. Sturgeon were sighted above the former Edwards Dam 
site after removal of the dam and in June 2005, an Atlantic sturgeon 
was incidentally captured at river kilometer 102 (NMFS and USFWS, 2007; 
Wippelhauser, 2012).
    Substrate type in the Kennebec estuary is largely sand and bedrock 
(Fenster and Fitzgerald, 1996; Moore and Reblin, 2008). Mesohaline 
waters occur upstream of Doubling Point during summer low flows, 
transitioning to oligohaline waters and then essentially tidal 
freshwater from Chops Point (the outlet of Merrymeeting Bay) upriver to 
the head-of tide on the Kennebec and Androscoggin rivers (ASMFC, 1998; 
Kistner and Pettigrew, 2001). A thorough description of the Kennebec 
Estuary is provided in Moore and Reblin 2008.
    During the period 1977-2001, Atlantic sturgeon in spawning 
condition (i.e., ripe males releasing sperm) or of size presumed to be 
sexually mature adults (i.e., greater than 150 cm total length) were 
caught between river kilometers 52.8 and 74 of the Kennebec River 
during the months of June and July, the likely spawning season. From 
2009 to 2011, 31 sturgeon, including 6 ripe males, were caught in the 
Kennebec River between river kilometers 70 and 75 (Wippelhauser, 2012; 
Wippelhauser and Squiers, 2015). Sturgeon in the Upper Kennebec Estuary 
(defined as river kilometer 45 to river kilometer 74 at head-of tide in 
the cited document) repeatedly moved between river kilometers 48 and 75 
(Wippelhauser, 2012). An additional eight sturgeon, including one ripe 
male, were caught in the Androscoggin in June and July of 2009-2011 
(Wippelhauser, 2012). Three larvae were also captured in the Upper 
Kennebec Estuary, 1 to 1.6 river kilometers upstream of river kilometer 
74, the former Edwards Dam site (Wippelhauser, 2012).
    The Merrymeeting Bay and Lower Kennebec Estuary are used by post-
spawn adults, juveniles, and other life stages at least as late as 
November, and some Atlantic sturgeon may overwinter in Merrymeeting Bay 
(Wippelhauser, 2012). Sturgeon captured and tagged in the Saco and 
Penobscot rivers are also detected in the Kennebec Estuary, typically 
Merrymeeting Bay and downstream locations, although at least one male, 
captured in the Saco in 2010, was the single ripe male also captured in 
the Androscoggin suggesting that the Saco and Penobscot are important 
habitat areas for the Androscoggin spawning population (Wippelhauser, 
2012). However, genetic information identifying the river of origin of 
the Atlantic sturgeon is not yet available.
    While there is no current evidence that Atlantic sturgeon are 
spawning in Gulf of Maine rivers other than the Kennebec and 
Androscoggin, captures of sturgeon in the Merrimack and Penobscot 
Rivers as well as the presence of the features necessary to support 
reproduction and recruitment in these rivers indicate that there is the 
potential for spawning to occur (Kieffer and Kynard, 1993; Fernandes et 
al., 2010; Wippelhauser, 2012). The 1998 and 2007 status reviews for 
Atlantic sturgeon described information for presence of Atlantic 
sturgeon in the Piscataqua River, including capture of a large female 
Atlantic sturgeon in spawning condition in 1990. The presence of this 
female (NMFS and USFWS, 1998; ASSRT, 2007) as well as the presence of 
the features necessary to support reproduction and recruitment in this 
river indicates that there is the potential for spawning to occur in 
the Piscataqua.
    Genetic information is available for Atlantic sturgeon captured in 
six specific areas of the marine range: Minas Basin, Bay of Fundy, 
Canada; the Connecticut River estuary; Long Island Sound; the Atlantic 
Ocean off of Rockaway, New York; the Atlantic Ocean off of Delaware 
Bay; and, the Atlantic Ocean off of Virginia/North Carolina (Laney et 
al., 2007; Wirgin et al., 2012; Waldman et al., 2013; O'Leary et al., 
2014; Wirgin et al., 2015a). Atlantic sturgeon belonging to the Gulf of 
Maine DPS comprised 35 percent of the Minas Basin, Bay of Fundy samples 
collected in the summer, suggesting this is an important foraging area 
for the Gulf of Maine DPS. The DPS comprised less than 2 percent to 
14.5 percent of Atlantic sturgeon sampled in the Connecticut River, 
Long Island Sound, the Atlantic Ocean off of Rockaway, New York, and 
the Atlantic Ocean off of Delaware Bay. The DPS was not detected in the 
sampled Atlantic sturgeon incidentally captured during winter from 
waters off of Virginia/North Carolina.
    At the time of listing, the Delaware and Hudson rivers were the 
only known spawning rivers for the New York Bight DPS of Atlantic 
sturgeon (Dovel and Berggren, 1983; Bain, 1998; Kahnle et al., 1998; 
NMFS and USFWS, 2007; Calvo et al., 2010). In spring 2014, several 
small Atlantic sturgeon were captured in the Connecticut River (T. 
Savoy, CT DEEP, pers. comm.). We presume these to be juveniles less 
than a year old based on their apparent size seen in a photo provided 
in the Connecticut Weekly Diadromous Fish Report, report date May 20, 
2014. Though it was previously thought that the Atlantic sturgeon 
population in the Connecticut had been extirpated (Savoy and Pacileo, 
2003; NMFS and USFWS, 2007), capture of these juvenile Atlantic 
sturgeon strongly suggests that spawning is occurring in this river. 
For the Housatonic River, the 1998 and 2007 status reviews for Atlantic 
sturgeon described information for historical presence of Atlantic 
sturgeon in that river, including Whitworth's (1996) reference to a 
large fishing industry for Atlantic sturgeon (NMFs and USFWS, 1998; 
NMFS and USFWS, 2007). Since the commercial fisheries targeted spawning 
sturgeon, historical captures of sturgeon in the Housatonic River as 
well as the presence of the features necessary to support reproduction 
and recruitment in this river indicates that there is the potential for 
spawning to occur in the Housatonic.
    The Hudson River is one of the most studied areas for Atlantic 
sturgeon. The upstream limit for Atlantic sturgeon on the Hudson River 
is the Federal Dam at the fall line, approximately river kilometer 246 
(Dovel and Berggren, 1983; Bain, 1998; Kahnle et al., 1998; Everly and 
Boreman, 1999). Recent tracking data indicate Atlantic sturgeon 
presence at this upstream limit (D. Fox, DESU, pers. comm.). Sturgeon 
occurring in the upstream limits of the river are suspected, but not 
yet confirmed, to belong to the New York Bight DPS.
    Spawning may occur in multiple sites within the river (Dovel and 
Berggren, 1983; Van Eenennaam et al., 1996; Kahnle et al., 1998; Bain 
et al., 2000). The area around Hyde Park (approximately river kilometer 
134) is considered a likely spawning area based on scientific studies 
and historical records of the Hudson River sturgeon fishery (Dovel and 
Berggren, 1983; Van Eenennaam et al., 1996; Kahnle et al.,

[[Page 35706]]

1998; Bain et al., 2000). Habitat conditions at the Hyde Park site are 
described as freshwater year round with substrate, including bedrock, 
and waters depths of 12 to 24 meters (Bain et al., 2000). Similar 
conditions occur at river kilometer 112, an area of freshwater and 
water depths of 21 to 27 meters (Bain et al., 2000).
    Catches of Atlantic sturgeon less than 63 cm fork length suggest 
that these sexually immature fish utilize the Hudson River estuary from 
the Tappan Zee (river kilometer 40) through Kingston (river kilometer 
148) (Dovel and Berggren, 1983; Haley, 1999; Bain et al., 2000). 
Seasonal movements of the immature fish are apparent as they primarily 
occupy waters from river kilometers 60 to 107 during summer months and 
then move downstream as water temperatures decline in the fall, 
primarily occupying waters between river kilometers 19 to 74 (Dovel and 
Berggren, 1983; Haley, 1999; Bain et al., 2000). In a separate study, 
Atlantic sturgeon ranging in size from 32 to 101 cm fork length were 
captured at highest concentrations during spring in soft-deep areas of 
Haverstraw Bay, even though this habitat type comprised only 25 percent 
of the available habitat in the Bay (Sweka et al., 2007).
    In the Delaware River, there is evidence of Atlantic sturgeon 
presence from the mouth of the Delaware Bay to the head-of-tide at the 
fall line near Trenton on the New Jersey side and Morrisville on the 
Pennsylvania side of the River, a distance of 220 river kilometers 
(Shirey et al., 1997; Brundage and O'Herron, 2007; Simpson, 2008; Calvo 
et al., 2010; Fisher, 2011; Breece et al., 2013). There are no dams on 
the Delaware River and an Atlantic sturgeon carcass was found as far 
upstream as Easton, PA in 2014 (M. Fisher, DE DNREC, pers. comm.), 
suggesting that sturgeon can move beyond the fall line.
    The presence of hard bottom habitat, the location of the salt-wedge 
in April through July, and tracking of adult Atlantic sturgeon in 
spawning condition suggests that spawning habitat for Atlantic sturgeon 
occurs within the Delaware River between river kilometer 125 (near 
Claymont, Delaware) and the fall line at river kilometer 211 (landmarks 
of Trenton, New Jersey, and Morrisville, Pennsylvania) (Sommerfield and 
Madsen, 2003; Simpson 2008; Breece et al., 2013).
    Twenty Atlantic sturgeon less than 30 cm fork length (26.2 to 34.9 
cm total length) and presumed to be less than one year old were 
captured in the Delaware River from September through November 2009 and 
tracked for up to one year using a passive acoustic array (Calvo et 
al., 2010; Fisher, 2011). The data collected indicate this life stage 
makes use of Delaware River habitats from river kilometers 105 to 199 
with seasonal changes in distribution (Fisher, 2009; Calvo et al., 
2010; Fisher, 2011). For example, during the winter months, some 
remained around river kilometer 134 (i.e., the Marcus Hook area) while 
others moved upstream or downstream, exhibiting migrations in and out 
of the area (Calvo et al., 2010; Fisher, 2011). Overall, the studies 
demonstrated the complexity of habitat needs for juvenile Atlantic 
sturgeons in the natal estuary during the first 1 to 2 years. In 
contrast to juveniles, subadult Atlantic sturgeon occur further 
downriver in polyhaline waters of the Bay and River (Brundage and 
Meadows, 1982; Lazzari et al., 1986; Shirey et al., 1997; Shirey et 
al., 1999; Simpson, 2008; Brundage and O'Herron, 2009; Calvo et al., 
2010; Fisher, 2011).
    The Connecticut River has long been known as a seasonal aggregation 
area for subadult Atlantic sturgeon, and both historical and 
contemporary records document presence of Atlantic sturgeon in the 
river as far upstream as Hadley, MA (Savoy and Shake, 1993; Savoy and 
Pacileo, 2003; NMFS and USFWS, 2007). The Enfield Dam located along the 
fall line at Enfield, CT prevented upstream passage of Atlantic 
sturgeon from 1827 until 1977 when it was breached (NMFS and USFWS, 
2007). Although Atlantic sturgeon may generally remain below the fall 
line, an Atlantic sturgeon was captured at the Holyoke Dam fish lift in 
2006, upstream of Enfield (NMFS and USFWS, 2007). As noted previously, 
the capture of juvenile Atlantic sturgeon in the Connecticut River in 
May 2014 (T. Savoy, CT DEEP, pers. comm.; Connecticut Weekly Diadromous 
Fish Report, report date May 20, 2014) suggests spawning may be 
occurring in the river.
    The genetics information for Atlantic sturgeon captured in six 
specific areas of the marine range demonstrated that Atlantic sturgeon 
belonging to the New York Bight DPS were present in each area. In 
addition, the New York Bight DPS was the most represented DPS in each 
collection, comprising 55 percent to 87 percent of the sturgeon sampled 
in each area, with the exception of the Minas Basin collection where 
the New York Bight DPS comprised only 1 to 2 percent of the sampled 
sturgeon (Laney et al., 2007; Wirgin et al., 2012; Waldman et al., 
2013; O'Leary et al., 2014; Wirgin et al., 2015a). The results suggest 
that New York Bight DPS Atlantic sturgeon travel great distances, 
including into Canadian waters, but occur most predominantly in marine 
waters in areas off New York and the Mid-Atlantic Bight.
    At the time of listing, the James River was the only known spawning 
river for the Chesapeake Bay DPS (NMFS and USFWS, 2007; Hager, 2011; 
Balazik et al., 2012). Since the listing, spawning has been confirmed 
to occur in the Pamunkey River, a tributary of the York River (Hager et 
al., 2014; Kahn et al., 2014). Spawning is also suspected to be 
occurring in Marshyhope Creek, a tributary of the Nanticoke River, 
based on the presence of adult sturgeon in spawning condition in areas 
and at times when spawning would be expected to occur (Maryland DNR, 
web article, September 17, 2014).
    Adult Atlantic sturgeon enter the James River in the spring, with 
at least some eventually moving as far upstream as Richmond (river 
kilometer 155), which is also the head-of-tide and close to the likely 
upstream extent of Atlantic sturgeon in the river, given the presence 
of Boshers Dam at the fall line (approximately river kilometer 160) 
(Bushnoe et al., 2005; Hager, 2011; Balazik et al., 2012). Adults 
disperse through downriver sites and begin to move out of the river in 
late September to early October, occupy only lower river sites by 
November, and are undetected on tracking arrays in the lower river by 
December, suggesting that the sturgeon leave the river for the winter 
(Hager, 2011; Balazik et al., 2012).
    The availability of hard-bottom habitat remains relatively limited 
in the James River and appears to be significantly reduced compared to 
the amount of available hard-bottom habitat described in historic 
records (Bushnoe et al., 2005; Austin, 2012). In general, tracked 
adults occurred further upstream during the late summer and early fall 
residency (e.g., river kilometer 108 to river kilometer 132; Balazik et 
al., 2012) than during the spring and early summer residency (e.g., 
river kilometer 29 to river kilometer 108; Hager, 2011), suggesting two 
different spawning areas depending on season.
    The capture of adult Atlantic sturgeon in spawning condition in the 
low salinity waters of the Pamunkey River, a major tributary of the 
York River, in August 2013, and subsequent genetic testing demonstrate 
that there is a spawning population of Atlantic sturgeon in the 
Pamunkey River (Hager et al., 2014; Kahn et al., 2014). The York River 
is 55 kilometers long from its mouth, after which it divides into two 
major tributaries, the Mattaponi and the Pamunkey Rivers (Bushnoe et 
al., 2005; Friedrichs, 2009; Reay, 2009). The

[[Page 35707]]

transition to freshwater typically occurs within these tributaries 
(Friedrichs, 2009; Reay, 2009). Bushnoe et al. (2005) previously 
reviewed available information on substrate, salinity, and dissolved 
oxygen for the Pamunkey and Mattaponi rivers and concluded that 
Atlantic sturgeon spawning habitat was likely present in each river.
    For the Susquehanna and Potomac Rivers, the 1998 and 2007 Atlantic 
sturgeon status reviews provided the information for presence of 
Atlantic sturgeon in the rivers, including: (1) Historical newspaper 
accounts of large sturgeon in the lower reaches of the Susquehanna 
River during the period 1765 to 1895; (2) personal communication of a 
limited but more recent sturgeon fishery on the Susquehanna near 
Perryville, Maryland (R. St. Pierre, USFWS, personal comm.); (3) 
several sightings of sturgeon near the Susquehanna River mouth during 
the period 1978 to 1987; (4) a historical fishery for Atlantic sturgeon 
in the Potomac; and (5) observations of a large mature female Atlantic 
sturgeon in the Potomac River in 1970 ((NMFS and USFWS, 1998; NMFS and 
USFWS, 2007). Since the commercial fisheries targeted spawning 
sturgeon, historical captures of sturgeon in the Susquehanna and 
Potomac Rivers, as well as the presence of the features necessary to 
support reproduction and recruitment in each river, indicate that there 
is the potential for spawning to occur in both the Susquehanna and 
Potomac.
    The 1998 and 2007 status reviews for Atlantic sturgeon described 
information for presence of Atlantic sturgeon in the Rappahannock 
River, including commercial landings data from the 1880s and incidental 
captures reported to the U.S. Fish and Wildlife Service Reward Program 
in the 1990's (NMFS and USFWS 1998; NMFS and USFWS, 2007). Most 
recently, in September 2015, researchers captured a male Atlantic 
sturgeon in spawning condition in the Rappahannock River (M. Balazik, 
Virginia Commonwealth University, pers. comm.). The historical and 
contemporary accounts of Atlantic sturgeon in the Rappahannock River 
(NMFS and USFWS, 1998; ASSRT, 2007), as well as the presence of the 
features necessary to support reproduction and recruitment in this 
river indicate that there is the potential for spawning to occur in the 
Rappahannock.
    The condition of Atlantic sturgeon captured in the late summer-fall 
in the James River (e.g., adults expressing milt or eggs), the rapid 
upstream movement of adults in the fall, and the aggregation of adults 
relative to the salt wedge provide evidence of fall spawning in the 
James River (NMFS and USFWS; 2007; Hager, 2011; Balazik et al., 2012). 
Similar evidence was found for adult sturgeon captured in the Pamunkey 
River in mid to late August 2013, and adult sturgeon captured in 
Marshyhope Creek in late August 2014 (Maryland DNR, web article, 
September 17, 2014). All of these instances provide evidence that 
Chesapeake DPS Atlantic sturgeon spawn in the fall.
    The genetics information for Atlantic sturgeon captured in six 
specific areas of the marine range demonstrates that Atlantic sturgeon 
belonging to the Chesapeake Bay DPS were present in at least four of 
the sampled areas: The Connecticut River, Long Island Sound, the 
Atlantic Ocean off of Rockaway, New York, and the Atlantic Ocean off of 
Delaware Bay. The DPS comprised approximately 5 percent to 21 percent 
of the Atlantic sturgeon sampled in these areas (Waldman et al., 2013; 
O'Leary et al., 2014; Wirgin et al., 2015a). The Chesapeake Bay DPS was 
not detected in the relatively small number of samples collected from 
Atlantic sturgeon captured in the winter off of North Carolina (Laney 
et al., 2007), and comprised no more that 1 percent of Atlantic 
sturgeon sampled in the Minas Basin in the summer (Wirgin et al., 
2012). The results suggest that Chesapeake Bay DPS Atlantic sturgeon 
travel great distances, including into Canadian waters, but occur most 
predominantly in marine waters of the New York and Mid-Atlantic Bight.

Geographical Area Occupied by Each DPS

    Consistent with our past practice, we interpret ``geographical area 
occupied'' for critical habitat designations to mean the range of the 
listed entity (e.g., species, subspecies or DPS) at the time of listing 
(45 FR 13011; February 27, 1980). In February 2016, NMFS and the USFWS 
published a joint final rulemaking that included a regulatory 
definition for ``geographical area occupied'' (81 FR 7417, February 11, 
2016). The new definition provides clarity to the critical habitat 
designation process, but does not change how we approached critical 
habitat designations.
    The marine range of the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs, including coastal bays and estuaries, is Hamilton 
Inlet, Labrador, Canada, to Cape Canaveral, Florida (77 FR 5880, 
February 6, 2012). The listing rule also identified the known spawning 
rivers for each of these DPSs, but it did not describe the specific in-
river range for any of the DPSs. Therefore, areas were considered to be 
within the range of a DPS if there were: (1) Presence of Atlantic 
sturgeon belonging to that DPS in that area; (2) presence of Atlantic 
sturgeon in a similar area within the boundaries of the otherwise 
established DPSs range; and, for rivers, (3) all areas downstream of 
the farthest known upstream location of Atlantic sturgeon belonging to 
that DPS in that river. Areas were identified as unoccupied by a DPS if 
the area was completely inaccessible to Atlantic sturgeon.
    Genetic analyses indicate the presence of Atlantic sturgeon 
belonging to the Gulf of Maine, New York Bight, and Chesapeake Bay DPS 
in many parts of the marine range including the Bay of Fundy, the 
Connecticut River Estuary, Long Island Sound, the New York Bight, and 
coastal waters from Delaware to North Carolina (Waldman et al., 1996; 
Laney et al., 2007; Dunton et al., 2010; Dunton et al., 2012; Wirgin et 
al., 2012; Waldman et al., 2013; O'Leary et al., 2014; Wirgin et al., 
2015a). In addition, tracking and tagging studies indicate the presence 
of Atlantic sturgeon throughout the marine range (Vladykov and Greeley, 
1963; Holland and Yelverton 1973; Dovel and Berggren, 1983; Gilbert 
1989; Savoy and Pacileo, 2003; Stein et al. 2004; Eyler, 2006; Laney et 
al., 2007; Dunton et al., 2010; Dunton et al., 2012; Oliver et al., 
2013). Based on our review of the literature and other available data, 
we concluded that Atlantic sturgeon: Typically occur in marine waters 
within the 50 m depth contour, but also occur in deeper marine waters; 
occur in many coastal sounds and bays from the Maine/Canada border to 
Cape Canaveral, Florida, regardless of whether or not the sound or bay 
is part of an estuary of a known spawning river; and, occur in tidally-
affected rivers along the coast.
    The ``geographical area occupied'' is only aquatic habitat (e.g., 
below the high tide line). In addition, certain natural features (e.g., 
large waterfalls) and dams are impassable barriers to sturgeon. 
Therefore, we consider those parts of the range that are currently 
inaccessible to Atlantic sturgeon due to dams, other manmade 
structures, or natural features to be unoccupied, and not part of the 
geographic area occupied by the DPS at the time of listing.

Physical and Biological Features Essential to Conservation That May 
Require Special Management Considerations or Protections

    As described above, critical habitat is defined as those specific 
areas in the geographical area occupied that (1) have the physical or 
biological features essential to the conservation of the

[[Page 35708]]

listed entity, and (2) may require special management considerations or 
protections. Each of these two prongs must be met when designating 
critical habitat within the occupied geographical area. If we identify 
physical or biological features that are essential to the conservation 
of the listed entity, but there are no special management 
considerations or protections that may be required, then we do not 
designate critical habitat based on those physical or biological 
features. Finally, we do not designate critical habitat based solely on 
the presence of the listed entity. The presence of the listed entity 
can, however, help us identify the essential physical or biological 
features. For example, repeated use of an area by the listed entity 
suggests the presence of essential physical or biological features.
    We determined that a key conservation objective for the Gulf of 
Maine, New York Bight, and Chesapeake Bay DPSs is to increase the 
abundance of each DPS by facilitating increased successful reproduction 
and recruitment to the marine environment. We know that each DPS is at 
a low level of abundance and successful reproduction and recruitment, 
which are essential to the conservation of the species, occur in a 
limited number of rivers for each DPS. Since the listing, additional 
rivers have either been confirmed to support spawning, or are suspected 
of supporting spawning for the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs (Wippelhauser, 2012; Hager et al., 2014; Kahn et 
al., 2014; T. Savoy, CT DEEP, pers. comm.). Nevertheless, the number of 
known spawning rivers for each DPS is still limited compared to the 
four to six rivers for each DPS in which spawning occurred in the past 
(NMFS and USFWS, 2007). Further, we do not know how successful 
reproduction is for any of the known spawning rivers (e.g., we do not 
have counts of the number of juveniles of each DPS or spawning river 
that recruit to the marine environment, compared to the number of 
fertilized eggs that hatched).
    The term ``physical or biological features'' is defined as the 
features that support the life-history needs of the species, including, 
but not limited to, water characteristics, soil type, geological 
features, sites, prey, vegetation, symbiotic species or other features. 
A feature may be a single habitat characteristic or a more complex 
combination of habitat characteristics. Features may include habitat 
characteristics that support ephemeral or dynamic habitat conditions. 
Features may also be expressed in terms of relating to principles of 
conservation biology, such as patch size, distribution distances, and 
connectivity (50 CFR 424.02). The term ``special management 
considerations or protection'' is defined as the methods or procedures 
useful in protecting the physical or biological features essential to 
the conservation of the listed species (50 CFR 424.02). In addition, 
the term ``may'' in the phrase ``may require special management 
considerations or protections'' was the focus of two cases in Federal 
district courts that ruled that features can meet this provision 
because of either a present requirement for special management 
considerations or protection or possible future requirements (see 
Center for Biol. Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 
2003); Cape Hatteras Access Preservation Alliance v. DOI, 344 F. Supp. 
108 (D.D.C. 2004)).
    Atlantic sturgeon are estuarine-dependent, anadromous fish that 
require specific estuarine habitat for successful reproduction and 
recruitment. Adults require unimpeded access (e.g., suitable water 
depth to be able to move freely and a lack of obstructions) to and from 
all spawning sites. In addition, spawning males require unimpeded 
access to search for spawning females throughout the spawning season. 
Fertilized eggs require freshwater, hard, clean substrate to adhere to, 
and flowing water that helps to disperse and aerate the eggs. Larval 
Atlantic sturgeon (less than 4 weeks old and less than 30 mm total 
length), assumed to inhabit the same freshwater areas where they were 
spawned, require hard substrate with interstitial spaces that provide 
refuge from predators. The relatively lengthy juvenile phase requires 
developing Atlantic sturgeon have access to aquatic habitat with a 
gradual downstream salinity gradient of 0.5 to 30 parts per thousand 
(e.g., inclusive of oligohaline, mesohaline, and polyhaline waters), 
and areas of soft substrate that provide an environment for benthic 
prey necessary for juvenile foraging. Last, Atlantic sturgeon juvenile 
rearing habitat, habitat for spawning adults and subadults, and larval 
habitat must have sufficient levels of dissolved oxygen both before the 
fish are present (to enable fish to utilize the habitat when they 
migrate to it) and when fish arrive since Atlantic sturgeon are 
particularly sensitive to low oxygen levels and, similar to other fish 
species, will avoid habitats that are hypoxic (i.e., have insufficient 
oxygen) (Secor and Niklitschek, 2001; Breitburg, 2002; EPA, 2003). 
Oxygen concentrations that fish avoid are approximately equal to 
concentrations that reduce their growth rate, even when at 
concentration levels higher than necessary for their survival 
(Breitburg 2002; EPA, 2003). Lab studies have shown that a dissolved 
oxygen concentration of about 6.5 mg/L supports growth and habitat use 
of juvenile Atlantic sturgeon less than two years old (Niklitschek and 
Secor, 2009; Niklitschek and Secor, 2010; Allen et al., 2014). The 
complex relationship between dissolved oxygen, temperature, and 
salinity, as well as other factors that can affect dissolved oxygen 
levels in estuaries (e.g., water depth and mixing), makes it difficult 
for us to specify water quality parameters necessary to support 
Atlantic sturgeon use of reproduction and recruitment habitat. The 
EPA's guidance on ambient water quality criteria for dissolved oxygen 
for the Chesapeake Bay recommends dissolved oxygen concentrations of 
greater than 6 mg/L, based on a seven-day mean, in tidal habitats with 
salinity of 0 to 0.5 parts per thousand for the growth of larval and 
juvenile tidal-fresh resident fish, including Atlantic sturgeon (EPA, 
2003). This concentration has been shown to increase the likelihood of 
habitat use by Atlantic sturgeon juveniles less than two years old 
(Niklitschek and Secor 2009; Niklitscheck and Secor, 2010). Since these 
early age groups are more sensitive to dissolved oxygen levels than 
older, larger juveniles, subadults, and adults, a dissolved oxygen 
concentration of 6 mg/L supports habitat use by all age groups. 
Therefore, the physical features essential for reproduction and 
recruitment are:
     Hard bottom substrate (e.g., rock, cobble, gravel, 
limestone, boulder, etc.) in low salinity waters (i.e., 0.0 to 0.5 
parts per thousand range) for settlement of fertilized eggs, refuge, 
growth, and development of early life stages;
     Aquatic habitat with a gradual downstream salinity 
gradient of 0.5 to 30 parts per thousand and soft substrate (e.g., 
sand, mud) downstream of spawning sites for juvenile foraging and 
physiological development;
     Water of appropriate depth and absent physical barriers to 
passage (e.g., locks, dams, reservoirs, gear, etc.) between the river 
mouth and spawning sites necessary to support: (1) Unimpeded movement 
of adults to and from spawning sites; (2) seasonal and physiologically 
dependent movement of juvenile Atlantic sturgeon to appropriate 
salinity zones within the river estuary; and (3) staging, resting, or 
holding of subadults or spawning condition adults. Water depths in main 
river channels must also be deep enough (e.g., >=1.2 m) to ensure

[[Page 35709]]

continuous flow in the main channel at all times when any sturgeon life 
stage would be in the river; and
     Water, especially in the bottom meter of the water column, 
with the temperature, salinity, and oxygen values that, combined, 
support: (1) Spawning; (2) annual and interannual adult, subadult, 
larval, and juvenile survival; and (3) larval, juvenile, and subadult 
growth, development, and recruitment (e.g., 13 [deg]C to 26 [deg]C for 
spawning habitat and no more than 30[deg] C for juvenile rearing 
habitat, and 6 mg/L dissolved oxygen for juvenile rearing habitat).
    The specific oxygen concentration and temperature values are 
provided as examples and guidance to inform the combinations of 
temperature, salinity, and oxygen that support successful reproduction 
and recruitment. Temperature, salinity, and oxygen are ephemeral by 
nature, fluctuating daily and seasonally in estuaries. Specific areas 
designated as critical habitat based on the four features are not 
expected to have water with oxygen concentration of 6 mg/L and the 
specific water temperatures at all times and within all parts of the 
area.
    Barriers (e.g., dams) and in-water structures (e.g., tidal 
turbines) in rivers used by Atlantic sturgeon can damage or destroy 
bottom habitat needed for spawning and rearing of juveniles, as well as 
restrict movement of adults to and from spawning grounds, and prevent 
juveniles from accessing the full range of salinity exposure in the 
natal estuary. Land development, as well as commercial and recreational 
activities on the river, contribute to the persistence of nutrient 
loading and sediment deposition, which negatively affect the water 
quality necessary for successful spawning and recruitment. For example, 
nutrient loading can result in unnaturally enhanced growth of aquatic 
vegetation or phytoplankton and algal blooms, which disrupt normal 
functioning of the ecosystem, causing a variety of problems, including 
a lack of sufficient levels of oxygen that fish, such as Atlantic 
sturgeon, need to survive. Excessive sediment deposition reduces 
Atlantic sturgeon egg adherence on hard spawning substrate and reduces 
the interstitial spaces used by larvae for refuge from predators. 
Dredging to remove sediment build-up or to facilitate vessel traffic 
may remove or alter hard substrate that is necessary for egg adherence 
and as refuge for larvae, and may change the water depth, resulting in 
shifts in the salt wedge within the estuary or change other 
characteristics of the water quality (e.g., temperature, dissolved 
oxygen) necessary for the developing eggs, larvae, and juveniles.
    The features essential for successful Atlantic sturgeon 
reproduction may also require special management considerations or 
protection as a result of global climate change. Many communities and 
commercial facilities withdraw water from the rivers containing the 
features essential to Atlantic sturgeon reproduction. Water withdrawals 
during times of low flow can affect the position of the salt wedge, 
impact the water depth necessary for successful sturgeon reproduction, 
and affect water flow. Because dissolved oxygen concentrations increase 
wherever the water flow becomes turbulent, decreasing flow can result 
in decreases in dissolved oxygen concentrations. Attempts to control 
water during very high flows (e.g., spilling water from dams upriver of 
Atlantic sturgeon spawning and rearing habitat) can create barriers 
(e.g., from debris) to upstream and downstream passage of adults and 
juveniles. Therefore, we concluded that the features essential to the 
conservation of each of the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs may require special management considerations or 
protections.
    For the reasons provided above, we have concluded that the habitat 
features that support successful spawning and recruitment of Atlantic 
sturgeon juveniles to the marine environment are: Essential to the 
conservation of the Gulf of Maine, New York Bight, and Chesapeake Bay 
DPSs; within the geographical area occupied by each DPS; and, may 
require special management considerations or protection. As such, we 
used these features to identify specific areas as potential critical 
habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs 
of Atlantic sturgeon.
    We determined another conservation objective for the Gulf of Maine, 
New York Bight, and Chesapeake Bay DPSs is to increase the abundance of 
each DPS by facilitating increased survival of subadults and adults. 
The ability of subadults to find food is necessary for continued 
survival, growth, and physiological development to the adult life 
stage. Likewise, given that Atlantic sturgeon mature late and do not 
necessarily spawn annually, increased adult survival would improve the 
chances that adult Atlantic sturgeon spawn more than once.
    We considered all studies that have collected Atlantic sturgeon 
stomach contents. All of the prey species identified are indicative of 
benthic foraging, and all of the identified prey are found in soft 
substrates. However, different types of prey were consumed, and 
different soft substrates were identified for the areas where Atlantic 
sturgeon were foraging (Bigelow and Schroeder, 1953; Johnson et al., 
1997; NMFS and USFWS, 2007; Guilbard et al., 2007; Savoy, 2007; 
Dzaugis, 2013; McLean et al., 2013). No data are available to 
differentiate areas of preferred prey items or higher prey abundance 
within or across estuaries. Adding to our uncertainty of the essential 
features that support successful foraging for growth and survival of 
subadults and adults, Atlantic sturgeon move between estuarine 
environments in the spring through fall, and can occur in estuarine 
environments during the winter as well (Savoy and Pacileo, 2003; 
Simpson, 2008; Collins et al., 2000; Balazik et al., 2012). For 
example, subadult Atlantic sturgeon spawned in one riverine system may 
utilize multiple estuaries for foraging and growth, including those not 
directly connected to their natal river. Due to the paucity of data on 
their estuarine needs and specific habitat or resource utilization, we 
could not at this time identify the physical or biological features of 
estuaries for foraging and growth that are essential to the 
conservation of the Gulf of Maine, New York Bight or Chesapeake Bay 
DPSs.
    Subadult and adult Atlantic sturgeon use marine waters to traverse 
between estuarine areas, particularly within the 50 meter depth 
contour. In addition, several congregations of Atlantic sturgeon in the 
marine environment are known to occur. However, the exact importance of 
those areas is not known, nor whether Atlantic sturgeon are drawn to 
particular areas based on physical or biological features of the 
habitat. Therefore, while we can identify general movement patterns and 
behavior in the marine environment (e.g., aggregating behavior) that 
may contribute to subadult and adult survival, due to the paucity of 
data on each DPSs' needs and specific habitat utilization in the marine 
environment, we could not at this time identify physical or biological 
features in the marine environment essential to conservation of the 
Gulf of Maine, New York Bight or Chesapeake Bay DPSs.

Unoccupied Areas

    As mentioned, the definition of critical habitat includes areas 
outside of the geographical area occupied by the listed entity (i.e., 
unoccupied areas) at the time it is listed if these areas are essential 
to the conservation of the listed entity. We do not need to identify

[[Page 35710]]

physical or biological features requiring special management 
consideration or protection within the unoccupied areas in order to 
designate unoccupied areas as critical habitat. However, the area must 
be essential to the conservation of the listed species.
    There are riverine areas outside of the geographical area occupied 
by the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs as a 
result of dams and natural falls. We considered whether these 
unoccupied areas were essential to the conservation of the respective 
DPS and concluded that they were not essential because nearly all known 
historical habitat is accessible to the Gulf of Maine, New York Bight, 
and Chesapeake Bay DPSs (NMFS and USFWS, 2007; 77 FR 5880, February 6, 
2012).

Critical Habitat Units

    Critical habitat must be defined by specific limits using reference 
points and lines as found on standard topographic maps of the area, and 
cannot use ephemeral reference points (50 CFR 424.12(c)). When several 
habitats, each satisfying the requirements for designation as critical 
habitat, are located in proximity to one another, an inclusive area may 
be designated as critical habitat (50 CFR 424.12(d)).
    The habitat containing the physical features essential to the 
conservation of the Gulf of Maine, New York Bight, and Chesapeake Bay 
DPSs and that may require special management or protection is aquatic 
habitat of main stem rivers flowing into a coastal estuary. We are 
designating only occupied habitat. Atlantic sturgeon typically cannot 
pass dams or natural features such as waterfalls and rapids found at 
the fall line of rivers from Maine through Virginia. Therefore, we are 
defining each critical habitat unit by an upriver landmark on the main 
stem river (e.g., the most downriver dam or a bridge immediately 
downriver of the fall line of that river) and all waters of the main 
stem downriver of that landmark to where the waters empty at its mouth 
into an identified water body.

Identified Critical Habitat for Each DPS

    Based on the physical features that we identified as essential for 
successful spawning and recruitment and the best available information, 
we identified five critical habitat units for the Gulf of Maine DPS as 
follows: (1) Penobscot River main stem from the Milford Dam downstream 
for 53 river kilometers to where the main stem river drainage 
discharges at its mouth into Penobscot Bay; (2) Kennebec River main 
stem from the Ticonic Falls/Lockwood Dam downstream for 103 river 
kilometers to where the main stem river discharges at its mouth into 
the Atlantic Ocean; (3) Androscoggin River main stem from the Brunswick 
Dam downstream for 10 river kilometers to where the main stem river 
drainage discharges into Merrymeeting Bay; (4) Piscataqua River from 
its confluence with the Salmon Falls and Cocheco rivers downstream for 
19 river kilometers to where the main stem river discharges at its 
mouth into the Atlantic Ocean as well as the waters of the Cocheco 
River from its confluence with the Piscataqua River and upstream 5 
river kilometers to the Cocheco Falls Dam, and waters of the Salmon 
Falls River from its confluence with the Piscataqua River and upstream 
6 river kilometers to the Route 4 Dam; and (5) Merrimack River from the 
Essex Dam (also known as the Lawrence Dam) downstream for 48 river 
kilometers to where the main stem river discharges at its mouth into 
the Atlantic Ocean. In total, these designations encompass 
approximately 244 kilometers (152 miles) of aquatic habitat.
    The physical features essential for successful reproduction and 
recruitment may require special management or protection in these 
specific areas because of potential adverse impacts from activities 
such as the operation of dams, dredging operations, other construction 
(e.g., bridge construction or repair), and impacts from development 
along the river that includes wastewater treatment and water 
withdrawals (Ceasar et al., 1976; Short, 1992; Kistner and Pettigrew, 
2001; Odell et al., 2006; NMFS and USFWS, 2007; Mohlar, 2008; Moore and 
Reblin, 2008; McFarlane, 2012).
    We identified four critical habitat units for the New York Bight 
DPS: (1) Connecticut River from the Holyoke Dam downstream for 140 
river kilometers to where the main stem river discharges at its mouth 
into Long Island Sound; (2) Housatonic River from the Derby Dam 
downstream for 24 river kilometers to where the main stem discharges at 
its mouth into Long Island Sound; (3) Hudson River from the Troy Lock 
and Dam (also known as the Federal Dam) downstream for 246 river 
kilometers to where the main stem river discharges at its mouth into 
New York City Harbor; and (4) Delaware River from the crossing of the 
Trenton-Morrisville Route 1 Toll Bridge, downstream for 137 river 
kilometers to where the main stem river discharges at its mouth into 
Delaware Bay. In total, these designations encompass approximately 547 
kilometers (340 miles) of aquatic habitat.
    The physical features that are essential to successful reproduction 
and recruitment may require special management or protection in these 
specific areas because of potential adverse impacts from, for example, 
the operation of dams, dredging operations, other construction (e.g., 
bridge construction or repair), and impacts from development along the 
river that includes wastewater treatment and water withdrawals 
(Hammerson, 2004; NMFS and USFWS, 2007; Henshaw, 2011; Breece et al., 
2013; 78 FR 1145).
    We identified five critical habitat units for the Chesapeake Bay 
DPS: (1) Susquehanna River from the Conowingo Dam downstream for 16 
river kilometers to where the main stem river discharges at its mouth 
into the Chesapeake Bay; (2) Potomac River from the Little Falls Dam 
downstream for 189 river kilometers to where the main stem river 
discharges at its mouth into the Chesapeake Bay; (3) Rappahannock River 
from the U.S. Highway 1 Bridge, downstream for 172 river kilometers to 
where the river discharges at its mouth into the Chesapeake Bay; (4) 
York River from its confluence with the Mattaponi and Pamunkey rivers 
downstream to where the main stem river discharges at its mouth into 
the Chesapeake Bay as well as the waters of the Mattaponi River from 
its confluence with the York River and upstream to the Virginia State 
Route 360 Bridge crossing of the Mattaponi River, and waters of the 
Pamunkey River from its confluence with the York River and upstream to 
the Virginia State Route 360 Bridge crossing of the Pamunkey River for 
a total of 192 kilometers of aquatic habitat, (5) James River from 
Boshers Dam downstream for 160 river kilometers to where the main stem 
river discharges at its mouth into the Chesapeake Bay at Hampton Roads. 
In total, these designations encompass approximately 729 kilometers 
(453 miles) of aquatic habitat.
    The physical features essential for successful spawning and 
recruitment may require special management or protection in these 
specific areas because of potential adverse impacts from activities 
such as the operation of dams, dredging operations, other construction 
(e.g., bridge construction or repair), and impacts from development 
along the river that includes wastewater treatment and water 
withdrawals (Bushnoe et al., 2005; CBF, 2006; NMFS and USFWS, 2007; 
Friedrichs, 2009; Reay, 2009; Austin, 2012; SRBC, 2013; Potomac 
Conservancy, 2014).

Military Lands

    Section 4(a)(3)(B) of the ESA prohibits designating as critical 
habitat any lands

[[Page 35711]]

or other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such a plan provides a benefit to 
the species for which critical habitat is proposed for designation.
    In February 2014, we requested information from the Department of 
Defense to assist in our analysis. Specifically, we asked for a list of 
facilities that occur within the potential critical habitat areas and 
available INRMPs for those facilities. There are a limited number of 
facilities with INRMPs that overlap with the potential critical habitat 
areas for the New York Bight and Chesapeake Bay DPSs. The Department of 
the Army identified the U.S. Military Academy--West Point, New York as 
a facility that overlapped with the Hudson River Critical Habitat Unit 
of the New York Bight DPS. The Department of the Air Force identified 
Joint Base Langley--Eustis, Virginia as a facility that overlapped with 
the James River Critical Habitat Unit of the Chesapeake Bay DPS. The 
Navy identified Marine Corps Base Quantico, Virginia, and Naval Support 
Facility Dahlgren as facilities that overlapped with the Potomac River 
Critical Habitat Unit, and identified Naval Weapons Station Yorktown, a 
complex of three facilities, as facilities that overlapped with the 
York River Critical Habitat Unit of the Chesapeake Bay DPS. We reviewed 
the INRMP for each facility and concluded that each INRMP provides a 
benefit to Atlantic sturgeon and its habitat belonging to the 
respective DPS. Therefore, in accordance with section 4(a)(3)(B) of the 
ESA, the particular areas of each facility with an approved INRMP that 
overlaps with a proposed critical habitat unit will not be part of the 
designated critical habitat unit. No Department of Defense facilities 
were identified as overlapping with potential critical habitat areas of 
the Gulf of Maine DPS.

Economic, National Security, and Other Relevant Impacts

    The administrative cost of conducting ESA section 7 consultations 
was determined to be the primary source of economic impacts as a result 
of designating critical habitat for the Gulf of Maine, New York Bight, 
and Chesapeake Bay DPSs. We used the consultation record over the past 
10 years to identify the types of Federal activities that may affect 
proposed Atlantic sturgeon critical habitat if implemented in the 
future. We also requested that federal action agencies provide us with 
information on future consultations if we omitted any future actions 
likely to affect the proposed critical habitat. Of the types of past 
consultations that ``may affect'' some or all of the essential features 
in any unit of proposed critical habitat, we determined that no 
activities would solely affect the essential features. That is, all 
categories of the activities identified have potential routes of 
adverse effects to both Atlantic or shortnose sturgeon and the critical 
habitat.
    There were no section 7 consultations for activities in the 
Housatonic River over the past ten years. Activities that have occurred 
did not trigger the need for section 7 consultation for a listed ESA 
species under NMFS jurisdiction (e.g., shortnose sturgeon), and there 
is no critical habitat designated in the Housatonic River for any other 
ESA-listed species under NMFS jurisdiction. Based on this information, 
the projected administrative cost of section 7 consultations likely to 
occur over the next ten years as a result of designating the Housatonic 
River Critical Habitat Unit was zero. However, the potential Housatonic 
River Critical Habitat Unit contains a federal navigation channel as 
well as a major highway bridge. Channel dredging, bridge maintenance, 
and bridge replacement are activities likely to trigger section 7 
consultation if critical habitat for Atlantic sturgeon are designated 
in the Housatonic River. We expect the federal navigation channel will 
require periodic dredging. Bridge replacement has recently occurred (78 
FR 1145; January 8, 2013), but we expect that routine maintenance will 
be required within the next 10 years. Therefore, the administrative 
section 7 costs as a result of designating the Housatonic River 
Critical Habitat Unit are unlikely to be zero. Based on the past 
history and the likely need for maintenance, we anticipate up to three 
formal consultations will occur over the next 10 years for federal 
agency actions that affect the features of the Housatonic River 
Critical Habitat Unit. However, consultation would also assess whether 
the proposed actions may affect one or more of the Atlantic sturgeon 
DPSs. Therefore, no incremental administrative impacts are anticipated 
as a result of designating critical habitat in the Housatonic River.
    Nine nationwide consultations with EPA are also expected to occur 
within the next 10 years. These consultations will involve all listed 
species and designated critical habitat under NMFS's jurisdiction, and 
thus costs attributable solely to this proposed rule are expected to be 
very small. To be conservative, we added nine consultations to each 
critical habitat unit, and nine to each DPS's total number of 
consultations. We spread the costs of these consultations ($5,080 each) 
evenly across all critical habitat units included in this proposed rule 
and the companion proposed rule to designate critical habitat for the 
Carolina and South Atlantic DPSs. This resulted in a total cost of 
$1,474.84 per critical habitat unit.
    We cannot be certain that the numbers of informal and formal 
consultations involving Atlantic sturgeon critical habitat in the 
future will be exactly the same as the number that would have occurred 
during the past ten years if critical habitat was designated at the 
time. We also have no information about the scope, methods, exact 
location or timing of future actions, which are key factors for 
determining whether an action may adversely affect critical habitat, 
which essential features may be affected, and whether the action may 
also affect Atlantic sturgeon. Similar to economic analyses for other 
NMFS critical habitat designations (e.g., for Gulf sturgeon (IEc, 
2003), and for the southern DPS of green sturgeon (IEc, 2009)), 
uncertainty was addressed by presenting three cost estimate scenarios: 
Consultations of low, medium, or high complexity. These cost estimate 
scenarios help to demonstrate how changes in the number of informal and 
formal consultations and differing percentages of coextensive and 
incremental consultations could influence the cost projections. The 
scenarios are: (1) Low administrative section 7 cost estimates, which 
are based on the assumption that the numbers of informal and formal 
consultations in the future will be the same as they were in the past, 
and that half of the consultations will be co-extensive (i.e., 
initiated as a result of listing and critical habitat designation) and 
half will be incremental (i.e., initiated as a result of the critical 
habitat designation); (2) medium administrative section 7 cost 
estimates, which are based on the assumption that the numbers of 
informal and formal consultations in the future will be the same as 
they were in the past, and that they will all be incremental; and, (3) 
high administrative section 7 cost estimates, which are based on the 
assumption that all consultations in the next ten years will be formal 
and incremental.
    The regulatory baseline conditions, including the listing of the 
Atlantic sturgeon, will greatly affect the number of incremental 
consultations. Specifically, the number of incremental

[[Page 35712]]

consultations will likely be relatively small, because Atlantic 
sturgeon of a given life stage are likely to be either directly or 
indirectly affected by the federal activities projected to occur within 
the proposed critical habitat. In general, we expect Atlantic sturgeon 
of a given life stage could occur year round in the particular areas 
proposed for designation. Therefore, the section 7 consultations we 
anticipate to occur will need to evaluate potential effects to both the 
Atlantic sturgeon DPS present in the area and the critical habitat 
since impacts will be co-extensive. Because the high and medium 
administrative costs estimates both assumed that all project 
consultations would be incremental, we consider the low administrative 
cost estimates to be the most realistic costs estimates.
    Based on the Draft Economic Impacts Analysis, the projected low 
administrative costs of designating all of the Gulf of Maine DPS 
critical habitat units total $816,574.20. The individual low costs for 
the five critical habitat units range from $54,274.84 for the 
Piscataqua River Critical Habitat Unit to $305,874.84 for the Kennebec 
River Critical Habitat Unit. The medium and high administrative costs 
for the Gulf of Maine DPS critical habitat units total $1,625,774.20 
and $2,707,374.20, respectively. The projected low administrative costs 
for the New York Bight DPS critical habitat units total $1,418,299.301. 
The individual low costs for the four critical habitat units range from 
31,474.84 for the Housatonic River Critical Habitat Unit to $752,674.84 
for the Hudson River Critical Habitat Unit. The medium and high 
administrative costs for the New York Bight DPS critical habitat units 
total $2,830,699.30 and $5,565,899.30, respectively. The projected low 
administrative costs of designating all of the Chesapeake Bay DPS 
critical habitat units total $524,974.20. The individual low costs for 
the five critical habitat units range from $45,474.84 for the 
Rappahannock River Critical habitat Unit to $276,274.84 for the Potomac 
River Critical Habitat Unit. The medium and high administrative costs 
for the Chesapeake Bay DPS critical habitat units total $1,042,574.20 
and $1,947,374.20, respectively.
    Currently, there is no information indicating that any of the 
section 7 consultations expected to result from the critical habitat 
designations will result in project modifications. However, there is 
potential that section 7 consultation stemming from these designations 
may, sometime in the future, result in project modifications and 
associated costs. Therefore, for illustrative purposes, the draft 
economic analysis similarly presents low, medium, and high cost 
estimate scenarios for project modifications that may need to be made 
to specific projects as a result of section 7 consultation. The same 
caveats noted above apply to costs associated with modifications, i.e., 
while the three broad categories of costs based on broad assumptions 
provide a potential range of costs, in most instances, modifications 
will occur as a result of coextensive impacts. It is extremely unlikely 
that modifications that would be required to avoid destruction or 
adverse modification of critical habitat would not also be required 
because of adverse effects to the species. Details of the cost 
projections and the number of past formal and informal consultations 
for each critical habitat unit of the Gulf of Maine, New York Bight, 
and Chesapeake Bay DPSs are provided in the draft economic analysis and 
the Draft Biological Information and 4(b)(2) Source Document.
    The Navy expressed concern that designating the Kennebec River and 
Piscataqua River critical habitat units, including the area of the 
Kennebec River adjacent to the location of Bath Iron Works, a private 
shipbuilder for the Navy, and the area of the Piscataqua River 
surrounding Portsmouth Naval Shipyard on Seavey Island at the mouth of 
the Piscataqua River, will impact the national security. The Navy 
described the activities likely to occur in one or both of the 
particular areas as: Flooding and dewatering dry docks, updating and 
maintaining pier structures including pile driving, and dredging 
activities to maintain proper channel and berthing depths.
    We considered the impact these activities are likely to have on the 
physical features. The physical features of critical habitat in the 
areas requested for exclusion are salinity suitable for older 
juveniles, open passage for juveniles suitably developed to leave the 
natal river, open passage for adults traveling through the area to and 
from spawning areas, open passage for subadults traveling through the 
area, and soft substrate. Withdrawing water from the river to flood dry 
docks and returning that water to the river would not change the 
salinity or substrate in the river and would have no impact on open 
passage. Maintaining and/or updating the pier structures is not likely 
to adversely affect salinity, but may affect open passage and substrate 
(e.g., placing more pier structures in the area, altering the substrate 
to make it more suitable for the pier structure). Similarly, dredging 
activities to maintain proper channel and berthing depths may affect 
(e.g., remove) the substrate that supports foraging, and change the 
depth affecting salinity (e.g., as a result of changes to mixing in the 
estuarine river or the extent of saltwater intrusion). However, 
dredging and maintaining and/or updating the pier structures also may 
affect the species. For example, construction to maintain and/or update 
pier structures can produce sounds that disrupt normal behaviors such 
as sturgeon foraging, staging, and spawning. Dredging may injure or 
kill sturgeon that come into contact with the gear (e.g., older 
juveniles passing through as they leave the natal river, adults 
traveling through the area to and from spawning areas, and subadults 
traveling through the area). Therefore, we determined that any 
resulting consultations will likely be coextensive.
    The Navy expressed concern that designating the Delaware River 
critical habitat unit in the area surrounding the Philadelphia Naval 
Yard Annex (three specific areas), will impact national security. The 
Navy described the activities likely to occur in the particular areas 
as: updating and maintaining pier structures including pile driving, 
dredging activities to maintain proper channel and berthing depths, 
barge loading and unloading, and fuel unloading.
    We considered the impact these activities are likely to have on the 
physical features. The physical features of critical habitat in the 
areas requested for exclusion are salinity suitable for younger 
juveniles, open passage for juveniles to access all parts of the 
estuary needed for development, open passage for adults traveling 
through the area to and from spawning areas, and soft substrate. The 
activities described by the Navy may affect salinity, open passage, and 
substrate. Maintaining and/or updating the pier structures may affect 
open passage and substrate (e.g., placing more pier structures in the 
area, and altering the substrate to make it more suitable for the pier 
structure). Dredging activities to maintain proper channel and berthing 
depths may affect (e.g., remove) the substrate that supports foraging 
and spawning. Changing the depth could affect salinity (e.g., as a 
result of changes to mixing in the estuarine river or the extent of 
saltwater intrusion). Barge loading and unloading, and fuel unloading 
may affect water quality (e.g., as a result of spills). Maintaining 
and/or updating the pier structures, dredging, and barge traffic also 
may affect the species. For example, maintaining and/or updating pier 
structures can produce sounds that

[[Page 35713]]

harass sturgeon and disrupt normal behaviors such as foraging, staging, 
and spawning. Dredging may result in injury or death of sturgeon that 
come into contact with the gear (e.g., older juveniles passing through 
as they leave the natal river, adults traveling through the area to and 
from spawning areas, and subadults traveling through the area). Vessels 
for fuel deliveries and barge traffic can strike sturgeon resulting in 
injuries and mortality. Since the activities described by the Navy are 
also likely to impact the species (e.g., juveniles and spawning 
adults), we expect consultations will be coextensive.
    The Navy also expressed concern that designating the Rappahannock 
and James River critical habitat units will impact national security. 
The activities conducted in these areas are in-water training on the 
Rappahannock, including small boat tactic, amphibious landings, and 
helicopter rope suspension techniques, and training activities on the 
lower James River, which include underwater diving and salvage 
operations, helicopter rope suspension techniques, small boat launch 
and recovery, high-speed boat tactics training, small boat defense 
drills, visit, board, search and seizure drills, integrated swimmer 
defense, submarine maintenance and system upgrades, sonar testing, 
towing of in-water devices, unmanned vehicle testing, and mine 
countermeasure testing.
    The physical features of critical habitat in the areas requested 
for exclusion are salinity suitable for older juveniles, open passage 
for juveniles to access all parts of the estuary needed for 
development, open passage for adults traveling through the area to and 
from spawning areas, open passage for subadults traveling through the 
area, and soft substrate. The described training activities are not 
likely to adversely affect salinity, but may affect open passage and 
substrate (e.g., from placement of structures, activities resulting in 
increased siltation or erosion of substrate). However, the training 
activities also may affect the species. For example, sonar testing and 
various in-water testing can produce sounds that harass sturgeon and 
disrupt normal behaviors such as foraging and staging. Small and large 
vessel operations can result in vessel strikes to sturgeon. Since the 
activities described by the Navy are also likely to impact the species 
(e.g., juveniles, subadults, and adults), we expect consultations will 
be coextensive.
    There are a number of potential beneficial impacts of designating 
critical habitat that extend beyond the conservation benefits to 
Atlantic sturgeon. For example, protecting essential features of 
sturgeon habitat, including preserving water quality and natural flow 
regimes, will benefit other organisms that are co-located in these 
areas. Benefits can result from additional protections in the form of 
project modifications or conservation measures due to section 7 
consultations or, conversely, a benefit of excluding an area from 
designation could be avoiding the costs associated with those 
protections (78 FR 53058, August 28, 2013). Because it is often 
difficult to quantify the benefits of designating critical habitat, 
Executive Order (EO) 12866, Regulatory Planning and Review, provides 
guidance on assessing costs and benefits. The EO directs Federal 
agencies to assess all costs and benefits of available regulatory 
alternatives, and to select those approaches that maximize net 
benefits.
    The designation of critical habitat will provide conservation 
benefits such as improved education and outreach by informing the 
public about areas and features important to the conservation of the 
Gulf of Maine, New York Bight, and Chesapeake Bay DPSs. As stated in 
the Background, specifying the geographic location of critical habitat 
facilitates implementation of section 7(a)(1) of the ESA by identifying 
areas where Federal agencies can focus their conservation programs and 
use their authorities to further the purposes of the ESA. Designating 
critical habitat can also help focus the efforts of other conservation 
partners (e.g., State and local governments, individuals and 
nongovernmental organizations).

Discretionary Exclusion Analysis

    Based on our consideration of impacts above, we are not excluding 
any particular areas from the critical habitat designation based on 
economic, national security, or other relevant impacts. Section 4(b)(2) 
of the ESA provides the Secretary with broad discretion to exclude any 
area from critical habitat if she determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless it is determined, based on the best scientific 
and commercial data available, that the failure to designate such area 
as critical habitat will result in the extinction of the species 
concerned. The agency has considerable discretion in evaluating the 
various impacts and determining how the impacts will be considered and 
weighed in deciding whether to exclude any particular area.
    We have analyzed the economic, national security, and other 
relevant impacts of designating critical habitat. Although we have used 
the best available information and an approach designed to avoid 
underestimating economic impacts, many of the potential impacts are 
speculative and may not occur in the future. Our conservative 
identification of potential, incremental, economic impacts indicates 
that any such impacts, if they were to occur, would be very small. Any 
incremental economic impacts will consist solely of the administrative 
costs of consultation; no project modifications are projected to be 
required to address impacts solely to the proposed critical habitat. 
The Navy requested exclusion of two areas within the Gulf of Maine DPS 
proposed critical habitat units, three areas within the New York Bight 
critical habitat units, and two areas within the Chesapeake Bay 
critical habitat units. As noted above, no impacts to national security 
are expected as a consequence of the proposed critical habitat. Other 
relevant impacts include conservation benefits of the designation, both 
to the species and to society. The designation of critical habitat will 
provide conservation benefits such as improved education and outreach 
by informing the public about areas and features important to the 
conservation of the Gulf of Maine, New York Bight, and Chesapeake Bay 
DPSs. There are also a number of potential beneficial impacts of 
designating critical habitat that extend beyond the conservation 
benefits to Atlantic sturgeon. For example, protecting essential 
features of sturgeon habitat, including preserving water quality and 
natural flow regimes, will benefit other organisms that are co-located 
in these areas. While we cannot quantify nor monetize the benefits, we 
believe they are not negligible and would be an incremental benefit of 
this designation. Therefore, we have concluded that there is no basis 
to exclude any particular area from the proposed critical habitat 
units.

Activities That May Be Affected

    Section 4(b)(8) of the ESA requires that any proposed or final 
regulation to designate critical habitat describe briefly and evaluate 
those activities that may adversely modify such habitat or that may be 
affected by such designation. A wide variety of activities may affect 
critical habitat and, when carried out, funded, or authorized by a 
Federal agency, will require an ESA section 7 consultation. Such 
activities (detailed in the economic analysis) include in-water 
construction, dredging, bridge, culvert,

[[Page 35714]]

and road projects (e.g., for restoration projects), hydropower (unknown 
capacity), utility lines, sand and gravel mining, and activities 
requiring National Pollutant Discharge Elimination System permits. 
Private entities may also be affected by these proposed critical 
habitat designations if a Federal permit is required, Federal funding 
is received, or the entity is involved in or receives benefits from a 
Federal project. These activities will need to be evaluated with 
respect to their potential to destroy or adversely modify critical 
habitat. Specifically, as discussed above, activities (dredging, 
mining, utility lines, in water construction, placement of dams and 
tidal turbines) may adversely modify the substrate essential feature by 
removing or altering the substrate. The open passage feature may also 
be adversely modified by the placement of structures such as dams and 
tidal turbines. The salinity feature may be adversely affected by 
activities that impact fresh water input, such as operation of water 
control structures and water withdrawals, and activities that impact 
water depth, such as dredging. The water quality feature may be 
adversely affected by land development, and commercial and recreational 
activities on rivers may adversely affect the water quality feature by 
contributing to the persistence of nutrient loading, resulting in 
decreased dissolved oxygen levels and increased water temperature, and 
by increasing sediment deposition, which reduces Atlantic sturgeon egg 
adherence on hard spawning substrate and reduces the interstitial 
spaces used by larvae for refuge from predators. Dredging to remove 
sediment build-up or to facilitate vessel traffic may remove or alter 
the hard substrate that is necessary for egg adherence and as refuge 
for larvae, and may change the water depth, resulting in shifts in the 
salt wedge within the estuary or changes to other characteristics of 
the water quality (e.g., temperature, dissolved oxygen) necessary for 
the developing eggs, larvae, and juveniles. These activities would 
require ESA section 7 consultation when they are implemented, funded, 
or carried out by a federal agency.
    Questions regarding whether specific activities will constitute 
destruction or adverse modification of critical habitat should be 
directed to NMFS (see ADDRESSES and FOR FURTHER INFORMATION CONTACT).

Public Comments Solicited

    We request that interested persons submit comments, information, 
and suggestions concerning this proposed rule during the comment period 
(see DATES). We are soliciting comments or suggestions from the public, 
other concerned governments and agencies, the scientific community, 
industry, or any other interested party concerning this proposed rule, 
including any foreseeable economic, national security, or other 
relevant impact resulting from the proposed designations. You may 
submit your comments and materials concerning this proposal by any one 
of several methods (see ADDRESSES). Copies of the proposed rule and 
supporting documentation can be found on the NMFS Greater Atlantic 
Region Web site at www.greateratlantic.fisheries.noaa.gov/. We will 
consider all comments pertaining to this designation received during 
the comment period in preparing the final rule. Accordingly, the final 
designation may differ from this proposal.

Information Quality Act and Peer Review

    The data and analyses supporting this proposed action have 
undergone a pre-dissemination review and have been determined to be in 
compliance with applicable information quality guidelines implementing 
the Information Quality Act (IQA) (Section 515 of Pub. L. 106-554). On 
July 1, 1994, a joint USFWS/NMFS policy for peer review was issued 
stating that the Services would solicit independent peer review to 
ensure the best biological and commercial data is used in the 
development of rulemaking actions and draft recovery plans under the 
ESA (59 FR 34270). In addition, on December 16, 2004, the Office of 
Management and Budget (OMB) issued its Final Information Quality 
Bulletin for Peer Review (Bulletin). The Bulletin was published in the 
Federal Register on January 14, 2005 (70 FR 2664), and went into effect 
on June 16, 2005. The primary purpose of the Bulletin is to improve the 
quality and credibility of scientific information disseminated by the 
Federal government by requiring peer review of `influential scientific 
information'' and ``highly influential scientific information'' prior 
to public dissemination. ``Influential scientific information'' is 
defined as ``information the agency reasonably can determine will have 
or does have a clear and substantial impact on important public 
policies or private sector decisions.'' The Bulletin provides agencies 
broad discretion in determining the appropriate process and level of 
peer review. Stricter standards were established for the peer review of 
``highly influential scientific assessments,'' defined as information 
whose ``dissemination could have a potential impact of more than $500 
million in any one year on either the public or private sector or that 
the dissemination is novel, controversial, or precedent-setting, or has 
significant interagency interest.''
    The Draft Biological Information and 4(b)(2) Source Document (NMFS, 
2015) and the Draft Economic Impact Analysis (King and Associates Inc., 
2014) supporting this proposed critical habitat rule are considered 
influential scientific information and subject to peer review. To 
satisfy our requirements under the OMB Bulletin, we obtained 
independent peer review of these draft documents, and incorporated the 
peer review comments prior to dissemination of this proposed 
rulemaking. For this action, compliance with the OMB Peer Review 
Bulletin satisfies any peer review requirements under the 1994 joint 
peer review policy. The Draft Biological Information and 4(b)(2) Source 
Document and the Draft Economic Impact Analysis prepared in support of 
this proposal are available on our Web site at www.greateratlantic.fisheries.noaa.gov. Comments received from peer reviewers on these 
documents will also be made available via our Web site at the time of 
publication of the proposed rule.

Classification

Takings (Executive Order 12630)

    Under E.O. 12630, Federal agencies must consider the effects of 
their actions on constitutionally protected private property rights and 
avoid unnecessary takings of property. A taking of property includes 
actions that result in physical invasion or occupancy of private 
property, and regulations imposed on private property that 
substantially affect its value or use. In accordance with E.O. 12630, 
this proposed rule would not have significant takings implications. The 
designation of critical habitat for the Gulf of Maine, New York Bight, 
and Chesapeake Bay DPSs of Atlantic sturgeon are not expected to impose 
additional burdens on land use or affect property values. Therefore, a 
takings implication assessment is not required.

Regulatory Planning and Review (Executive Order 12866)

    This proposed rule has been determined to be significant for 
purposes of E.O. 12866. A draft economic report has been prepared to 
support an impacts analysis under section 4(b)(2) of the ESA.

[[Page 35715]]

Federalism (Executive Order 13132)

    Pursuant to the Executive Order on Federalism, E.O. 13132, we 
determined that this proposed rule does not have significant Federalism 
effects and that a Federalism assessment is not required. However, in 
keeping with Department of Commerce policies and consistent with ESA 
regulations at 50 CFR 424.16(c)(1)(ii), we will request information for 
this proposed rule from state resource agencies in Maine, New 
Hampshire, Massachusetts, Connecticut, New York, New Jersey, Delaware, 
Maryland, and Virginia as well as appropriate authorities for the 
District of Columbia. The proposed designations may have some benefit 
to state and local resource agencies in that the proposed rule more 
clearly defines the physical and biological features essential to the 
conservation of the species and the areas on which those features are 
found.

Energy Supply, Distribution, and Use (Executive Order 13211)

    Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking an action expected to lead to the 
promulgation of a final rule or regulation that is a significant 
regulatory action under E.O. 12866 and is likely to have a significant 
adverse effect on the supply, distribution, or use of energy. OMB 
Guidance on Implementing E.O. 13211 (July 13, 2001) states that 
significant adverse effects could include any of the following outcomes 
compared to a world without the regulatory action under consideration: 
(1) Reductions in crude oil supply in excess of 10,000 barrels per day; 
(2) reductions in fuel production in excess of 4,000 barrels per day; 
(3) reductions in coal production in excess of 5 million tons per year; 
(4) reductions in natural gas production in excess of 25 million mcf 
per year; (5) reductions in electricity production in excess of 1 
billion kilowatt-hours per year or in excess of 500 megawatts of 
installed capacity; (6) increases in energy use required by the 
regulatory action that exceed any of the thresholds above; (7) 
increases in the cost of energy production in excess of one percent; 
(8) increases in the cost of energy distribution in excess of one 
percent; or (9) other similarly adverse outcomes. A regulatory action 
could also have significant adverse effects if it: (1) Adversely 
affects in a material way the productivity, competition, or prices in 
the energy sector; (2) adversely affects in a material way 
productivity, competition or prices within a region; (3) creates a 
serious inconsistency or otherwise interferes with an action taken or 
planned by another agency regarding energy; or (4) raises novel legal 
or policy issues adversely affecting the supply, distribution or use of 
energy arising out of legal mandates, the President's priorities, or 
the principles set forth in E.O. 12866 and 13211.
    This rule, if finalized, will not have a significant adverse effect 
on the supply, distribution, or use of energy. Therefore, we have not 
prepared a Statement of Energy Effects.

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

    We prepared an initial regulatory flexibility analysis (IRFA) 
pursuant to section 603 of the Regulatory Flexibility Act (RFA) (5 
U.S.C. 601, et seq.). The IRFA analyzes the impacts of this proposed 
rule, if enacted, on small entities. Specifically, the IRFA describes 
the economic impact on small entities in those areas where critical 
habitat is proposed, and is included as Appendix A of the Draft 
Biological Information and 4(b)(2) Source Document available at the 
location identified in the ADDRESSES section. A summary of the IRFA 
follows.
    We determined that the Gulf of Maine, New York Bight, and 
Chesapeake Bay DPSs of Atlantic sturgeon warranted listing under the 
Endangered Species Act (ESA) and published notice of that decision on 
February 6, 2012 (77 FR 5880). We are required to designate critical 
habitat for each of the DPSs of Atlantic sturgeon (16 U.S.C. 
1533(a)(3)). The critical habitat provisions of the ESA are intended to 
promote recovery of the ESA-listed species by prohibiting federal 
agency actions from destroying or adversely modifying the physical or 
biological features that are essential to conservation of the listed 
entity.
    The ESA section 7 consultation requirement for critical habitat 
does not apply to citizens engaged in activities on private land that 
do not involve a Federal agency. However, there may be an impact to 
private citizens and small entities that are engaged in activities that 
involve a Federal agency action. For example, small businesses involved 
in construction activities such as breakwater, dock, pier, and harbor 
construction may be impacted if a federal agency must issue a permit 
for the work to be conducted, will provide funds for the work, or will 
otherwise be involved in carrying out the work. Such involvement by a 
federal agency triggers the need for section 7 consultation.
    We considered three alternatives: (1) No action, (2) designating 
some of the identified critical habitat areas, or (3) designating all 
critical habitat areas identified for the Gulf of Maine, New York 
Bight, and Chesapeake Bay DPSs of Atlantic sturgeon. Under the ``no 
action'' alternative, we would not designate critical habitat for the 
Gulf of Maine, New York Bight or Chesapeake Bay DPSs. By comparison, 
designating some of the identified critical habitat areas (i.e., 
Alternative 2) could result in an increase in the number of section 7 
consultations required to avoid adverse impacts relative to the ``no 
action'' alternative, while Alternative 3 would likely result in the 
greatest number of section 7 consultations relative to the other 
alternatives.
    We have determined that the physical features forming the basis for 
our proposed critical habitat designations are essential to the 
conservation of the Gulf of Maine, New York Bight, and Chesapeake Bay 
DPSs. Therefore, we rejected the no action alternative and Alternative 
2. We have analyzed the economic, national security, and other relevant 
impacts of designating all critical habitat identified for the DPSs. 
Our conservative identification of potential, incremental economic 
impacts indicates that any such impacts, if they were to occur, would 
be very small. Any incremental economic impacts will consist solely of 
the administrative costs of consultation; no project modifications are 
projected to be required to address impacts solely to the proposed 
critical habitat. No impacts to national security are expected as a 
consequence of the proposed critical habitat. Other relevant impacts 
include conservation benefits of the designation, both to the species 
and to society. While we cannot quantify or monetize the benefits, we 
believe that the benefits of this critical habitat designation would be 
incremental, and that they are not negligible.
    The Small Business Administration has established numerical 
definitions of small businesses, or ``size standards,'' for all for-
profit industries. Based on these size standards (e.g., in millions of 
dollars or number of employees), King and Associates, Inc. (2014), 
concluded a high percent of business entities located in the counties 
that include one or more of the critical habitat units, an average of 
99.8% across all units, are small businesses. However, data are not 
available to determine the location of these small business entities 
within each county in order to determine how many are located in or 
near areas proposed as critical habitat. Therefore, for purposes of 
projecting the impacts of administrative section 7 costs on small 
businesses in each critical habitat unit, King and Associates assumed 
that the

[[Page 35716]]

percentage of private entities involved in those consultations that are 
small entities is the same as the percentage of businesses that are 
small entities in the counties that include critical habitat units.
    The same approach that was used by King and Associates to estimate 
low, medium, and high overall ESA section 7 administrative costs was 
used as a basis for developing low, medium, and high estimates of 
section 7 impacts on small entities. Impacted small entities may 
include contractors involved in construction activities such as 
breakwater, dock, pier, bridge, and harbor construction, contractors 
involved in restoration activities such as culvert replacements, and 
marina owners who must maintain pier and dock structures. King and 
Associates concluded that costs to small entities associated with the 
designation range from about $16,500 to $47,250 annually in the Gulf of 
Maine DPS, about $30,000 to $96,000 annually in the New York Bight DPS, 
and about $11,000 to $34,000 annually in the Chesapeake Bay DPS (King 
and Associates, Inc., 2014). We found no data to suggest that the 
designation would place small entities at a competitive disadvantage 
compared to large entities.

Coastal Zone Management Act

    Under section 307(c)(1)(A) of the Coastal Zone Management Act 
(CZMA) (16 U.S.C. 1456(c)(1)(A)) and its implementing regulations, each 
Federal activity within or outside the coastal zone that has reasonably 
foreseeable effects on any land or water use or natural resource of the 
coastal zone shall be carried out in a manner which is consistent to 
the maximum extent practicable with the enforceable policies of 
approved State coastal management programs. We have determined that any 
effects of this proposed designation of critical habitat on coastal 
uses and resources in Maine, New Hampshire, Massachusetts, Connecticut, 
New York, New Jersey, Delaware, Pennsylvania, Maryland, and Virginia 
are not reasonably foreseeable at this time. This proposed designation 
may trigger ESA section 7 obligations for federal agencies. These 
consultations will consider effects of Federal actions on coastal uses 
and resources to the extent they overlap with critical habitat. We 
considered the range of Federal actions that this designation may 
affect (e.g., dredging, bridge construction/repair, water withdrawals) 
and which may affect coastal uses and resources in the affected States. 
However, we do not have sufficient information on the specifics of any 
future activities (e.g., when, where and how they will be carried out) 
to characterize any of these as reasonable foreseeable. Therefore, 
because the effects are not reasonably foreseeable, we cannot make a 
determination as to whether the Federal activities will be consistent 
with any enforceable policies of approved State coastal management 
programs. Through the consultation process, we will receive information 
on proposed Federal actions and their effects on listed species and the 
designated critical habitat upon. We base any biological opinions on 
this information. It will then be up to the Federal action agencies to 
decide how to comply with the ESA in light of our biological opinion, 
as well as to ensure that their actions comply with the CZMA's Federal 
consistency requirement. At this time, we do not anticipate that this 
designation is likely to result in any additional management measures 
by other Federal agencies.

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

    This proposed rule does not contain any new or revised collection 
of information. This rule, if adopted, would not impose recordkeeping 
or reporting requirements on State or local governments, individuals, 
businesses, or organizations.

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

    This proposed rule will not produce a Federal mandate. The 
designation of critical habitat does not impose a legally-binding duty 
on non-Federal government entities or private parties. The only 
regulatory effect is that Federal agencies must ensure that their 
actions do not destroy or adversely modify critical habitat under 
section 7 of the ESA. Non-Federal entities which receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat but, the Federal agency 
has the legally binding duty to avoid destruction or adverse 
modification of critical habitat.
    We do not anticipate that this rule, if finalized, will 
significantly or uniquely affect small governments. Therefore, a Small 
Government Action Plan is not required.

Consultation and Coordination With Indian Tribal Governments (Executive 
Order 13175)

    The longstanding and distinctive relationship between the Federal 
and tribal governments is defined by treaties, statutes, executive 
orders, judicial decisions, and agreements, which differentiate tribal 
governments from the other entities that deal with, or are affected by, 
the Federal Government. This relationship has given rise to a special 
Federal trust responsibility involving the legal responsibilities and 
obligations of the United States toward Indian Tribes and the 
application of fiduciary standards of due care with respect to Indian 
lands, tribal trust resources, and the exercise of tribal rights.
    Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, outlines the responsibilities of the Federal 
Government in matters affecting tribal interests. If NMFS issues a 
regulation with tribal implications (defined as having a substantial 
direct effect on one or more Indian tribes, on the relationship between 
the Federal Government and Indian tribes, or on the distribution of 
power and responsibilities between the Federal Government and Indian 
tribes) we must consult with those governments or the Federal 
Government must provide funds necessary to pay direct compliance costs 
incurred by tribal governments. The proposed critical habitat 
designations for Gulf of Maine, New York Bight, and Chesapeake Bay 
Atlantic sturgeon DPSs do not have tribal implications.

References Cited

    A complete list of all references cited in this rulemaking can be 
found at www.greateratlantic.fisheries.noaa.gov, and is available upon 
request from the NMFS Greater Atlantic Region Fisheries Office in 
Gloucester, Massachusetts (see ADDRESSES).

List of Subjects in 50 CFR Part 226

    Endangered and threatened species.

    Dated: May 24, 2016.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, we propose to amend 50 CFR 
part 226 as follows:

PART 226--DESIGNATED CRITICAL HABITAT

0
1. The authority citation for part 226 continues to read as follows:

    Authority: 16 U.S.C. 1533.

0
2. Add Sec.  226.225 to read as follows:

[[Page 35717]]

Sec.  226.225  Critical habitat for the Gulf of Maine, New York Bight, 
and Chesapeake Bay Distinct Population Segments of Atlantic Sturgeon.

    Critical habitat is designated for the Gulf of Maine, New York 
Bight, and Chesapeake Bay Distinct Population Segments (DPSs) of 
Atlantic sturgeon as described in paragraphs (a) through (c) of this 
section. The textual descriptions in paragraphs (c) through (f) of this 
section are the definitive source for determining the critical habitat 
boundaries.
    (a) The physical features essential for the conservation of 
Atlantic sturgeon belonging to the Gulf of Maine, New York Bight, and 
Chesapeake Bay Distinct Population Segments are those habitat 
components that support successful reproduction and recruitment. These 
are:
    (1) Hard bottom substrate (e.g., rock, cobble, gravel, limestone, 
boulder, etc.) in low salinity waters (i.e., 0.0-0.5 parts per thousand 
range) for settlement of fertilized eggs, refuge, growth, and 
development of early life stages;
    (2) Aquatic habitat with a gradual downstream salinity gradient of 
0.5-30 parts per thousand and soft substrate (e.g., sand, mud) 
downstream of spawning sites for juvenile foraging and physiological 
development;
    (3) Water of appropriate depth and absent physical barriers to 
passage (e.g., locks, dams, reservoirs, gear, etc.) between the river 
mouth and spawning sites necessary to support:
    (i) Unimpeded movement of adults to and from spawning sites;
    (ii) Seasonal and physiologically dependent movement of juvenile 
Atlantic sturgeon to appropriate salinity zones within the river 
estuary; and
    (iii) Staging, resting, or holding of subadults or spawning 
condition adults. Water depths in main river channels must also be deep 
enough (e.g., >=1.2 m) to ensure continuous flow in the main channel at 
all times when any sturgeon life stage would be in the river;
    (4) Water, especially in the bottom meter of the water column, with 
the temperature, salinity, and oxygen values that, combined, support:
    (i) Spawning;
    (ii) Annual and interannual adult, subadult, larval, and juvenile 
survival; and
    (iii) Larval, juvenile, and subadult growth, development, and 
recruitment (e.g., 13 [deg]C to 26 [deg]C for spawning habitat and no 
more than 30 [deg]C for juvenile rearing habitat, and 6 mg/L dissolved 
oxygen for juvenile rearing habitat).
    (b) Critical habitat is designated for the following DPSs in the 
following states and counties:

----------------------------------------------------------------------------------------------------------------
                     DPS                                            State/district--counties
----------------------------------------------------------------------------------------------------------------
Gulf of Maine................................  ME--Androscoggin, Cumberland, Kennebec, Lincoln, Penobscot,
                                                Sagadahoc, Somerset, Waldo, York.
                                               NH--Rockingham, Stafford.
                                               MA--Essex.
New York Bight...............................  CT--Fairfield, Hartford, Litchfield, Middlesex, New Haven, New
                                                London, Tolland.
                                               NJ--Bergen, Burlington, Camden, Cape May, Cumberland, Gloucester,
                                                Hudson, Mercer, Monmouth, Salem.
                                               NY--Albany, Bronx, Columbia, Dutchess, Greene, Kings, New York,
                                                Orange, Putnam, Queens, Rensselaer, Richmond, Rockland,
                                                Saratoga, Ulster, Westchester.
                                               DE--Kent, New Castle, Sussex.
                                               PA--Bucks, Delaware, Philadelphia.
Chesapeake Bay...............................  D.C.--District of Columbia.
                                               MD--Charles, Montgomery, Prince George's, St. Mary's.
                                               VA--Arlington, Caroline, Charles City, Chesterfield, Dinwiddie,
                                                Essex, Fairfax, Gloucester, Hanover, Henrico, Isle of Wight,
                                                King George, James City, King and Queen, King William,
                                                Lancaster, Loudoun, Middlesex, New Kent, Northumberland, Prince
                                                George, Prince William, Richmond, Spotsylvania, Stafford, Surry,
                                                Westmoreland, York.
----------------------------------------------------------------------------------------------------------------

    (c) Critical habitat boundaries for the Gulf of Maine DPS. Critical 
habitat for the Gulf of Maine DPS of Atlantic sturgeon is the waters 
of:
    (1) Penobscot River main stem from the Milford Dam downstream to 
where the main stem river drainage discharges at its mouth into 
Penobscot Bay;
    (2) Kennebec River main stem from the Ticonic Falls/Lockwood Dam 
downstream to where the main stem river discharges at its mouth into 
the Atlantic Ocean;
    (3) Androscoggin River main stem from the Brunswick Dam downstream 
to where the main stem river drainage discharges into Merrymeeting Bay;
    (4) Piscataqua River from its confluence with the Salmon Falls and 
Cocheco rivers downstream to where the main stem river discharges at 
its mouth into the Atlantic Ocean as well as the waters of the Cocheco 
River from its confluence with the Piscataqua River and upstream to the 
Cocheco Falls Dam, and waters of the Salmon Falls River from its 
confluence with the Piscataqua River and upstream to the Route 4 Dam; 
and,
    (5) Merrimack River from the Essex Dam (also known as the Lawrence 
Dam) downstream to where the main stem river discharges at its mouth 
into the Atlantic Ocean.
    (d) Critical Habitat Boundaries of the New York Bight DPS. Critical 
habitat for the New York Bight DPS of Atlantic sturgeon is the waters 
of:
    (1) Connecticut River from the Holyoke Dam downstream to where the 
main stem river discharges at its mouth into Long Island Sound;
    (2) Housatonic River from the Derby Dam downstream to where the 
main stem discharges at its mouth into Long Island Sound;
    (3) Hudson River from the Troy Lock and Dam (also known as the 
Federal Dam) downstream to where the main stem river discharges at its 
mouth into New York City Harbor; and
    (4) Delaware River at the crossing of the Trenton-Morrisville Route 
1 Toll Bridge, downstream to where the main stem river discharges at 
its mouth into Delaware Bay.
    (e) Critical Habitat Boundaries of the Chesapeake Bay DPS. Critical 
habitat for the Chesapeake Bay DPS of Atlantic sturgeon is the waters 
of:
    (1) Susquehanna River from the Conowingo Dam downstream to where 
the main stem river discharges at its mouth into the Chesapeake Bay;
    (2) Potomac River from the Little Falls Dam downstream to where the 
main stem river discharges at its mouth into the Chesapeake Bay;
    (3) Rappahannock River from the U.S. Highway 1 Bridge, downstream 
to where the river discharges at its mouth into the Chesapeake Bay;
    (4) York River from its confluence with the Mattaponi and Pamunkey 
rivers downstream to where the main stem river discharges at its mouth 
into the Chesapeake Bay as well as the waters of the Mattaponi River 
from its confluence with the York River and upstream to the Virginia 
State Route 360 Bridge of the Mattaponi River, and

[[Page 35718]]

waters of the Pamunkey River from its confluence with the York River 
and upstream to the Virginia State Route 360 Bridge crossing of the 
Pamunkey River; and
    (5) James River from Boshers Dam downstream to where the main stem 
river discharges at its mouth into the Chesapeake Bay at Hampton Roads.
    (f) Sites owned or controlled by the Department of Defense. 
Critical habitat for the New York Bight and Chesapeake Bay DPSs of 
Atlantic sturgeon do not include the following areas owned or 
controlled by the Department of Defense, or designated for its use, in 
the States of New York and Virginia.
    (1) The Department of the Army, U.S. Military Academy--West Point, 
NY;
    (2) The Department of the Air Force, Joint Base Langley--Eustis, 
VA;
    (3) The Department of the Navy, Marine Corps Base Quantico, VA;
    (4) The Department of the Navy, Naval Weapons Station Yorktown, VA; 
and,
    (5) The Department of the Navy, Naval Support Facility Dahlgren, 
VA.
    (g) Maps of the Gulf of Maine, New York Bight, and Chesapeake Bay 
DPSs follow:
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[FR Doc. 2016-12743 Filed 6-2-16; 8:45 am]
 BILLING CODE 3510-22-P