[Federal Register Volume 81, Number 107 (Friday, June 3, 2016)]
[Proposed Rules]
[Pages 36078-36123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12744]



[[Page 36077]]

Vol. 81

Friday,

No. 107

June 3, 2016

Part VI





 Department of Commerce





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National Oceanic and Atmospheric Administration





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50 CFR Part 226





 Endangered and Threatened Species; Critical Habitat for the Endangered 
Carolina and South Atlantic Distinct Population Segments of Atlantic 
Sturgeon; Proposed Rule

  Federal Register / Vol. 81 , No. 107 / Friday, June 3, 2016 / 
Proposed Rules  

[[Page 36078]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 226

[Docket No. 150817733-6237-01]
RIN 0648-BF32


Endangered and Threatened Species; Critical Habitat for the 
Endangered Carolina and South Atlantic 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 NMFS, propose to designate critical habitat for the 
endangered Carolina distinct population segment of the Atlantic 
sturgeon (Carolina DPS of Atlantic sturgeon) and the endangered South 
Atlantic distinct population segment of the Atlantic sturgeon (South 
Atlantic DPS of Atlantic sturgeon) pursuant to section 4 of the 
Endangered Species Act (ESA). Specific occupied areas proposed for 
designation as critical habitat for the Carolina DPS of Atlantic 
sturgeon contain approximately 1,997 kilometers (km; 1,241 miles) of 
aquatic habitat within the following rivers: Roanoke, Tar-Pamlico, 
Neuse, Cape Fear, Northeast Cape Fear, Waccamaw, Pee Dee, Black, 
Santee, North Santee, South Santee, and Cooper, and the following other 
water body: Bull Creek. In addition, we propose to designate unoccupied 
areas for the Carolina DPS totaling 383 km (238 miles) of aquatic 
habitat within the Cape Fear, Santee, Wateree, Congaree, and Broad 
Rivers, and within Lake Marion, Lake Moultrie, rediversion canal, and 
diversion canal. Specific occupied areas proposed for designation as 
critical habitat for the South Atlantic DPS of Atlantic sturgeon 
contain approximately 2,911 km (1,809 miles) of aquatic habitat within 
the Edisto, Combahee-Salkehatchie, Savannah, Ogeechee, Altamaha, 
Ocmulgee, Oconee, Satilla, and St. Marys Rivers. In addition, we 
propose to designate an unoccupied area within the Savannah River for 
the South Atlantic DPS that contains 33 km (21 miles) of aquatic 
habitat. We have considered positive and negative economic, national 
security, and other relevant impacts of the proposed critical habitat. 
We do not propose to exclude any particular area from the proposed 
critical habitat.
    We are soliciting comments from the public on all aspects of the 
proposal, including our identification and consideration of impacts of 
the proposed action.

DATES: Comments on this proposal must be received by September 1, 2016.
    Public hearing meetings: We will hold three public hearings on this 
proposed rule from 7 to 9 p.m. in the following locations: Brunswick, 
Georgia on Monday, June 20; Charleston, South Carolina on Tuesday, June 
21; and, Morehead City, North Carolina, Thursday, June 23 (see 
ADDRESSES).

ADDRESSES: You may submit comments, identified by the docket number 
NOAA-NMFS-2015-0157, by any 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-2015-0157 click the ``Comment Now'' icon, 
complete the required fields, and enter or attach your comments.
     Mail: Assistant Regional Administrator, Protected 
Resources Division, NMFS, Southeast Regional Office, 263 13th Avenue 
South, St. Petersburg, FL 33701.
    Instructions: You must submit comments by one of the above methods 
to ensure that we receive, document, and consider them. 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. All 
comments received are a part of the public record and will generally be 
posted to http://www.regulations.gov without change. All Personal 
Identifying Information (for example, name, address, etc.) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
Confidential Business Information or otherwise sensitive or protected 
information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    Public hearings: The June 20, 2016, public hearing will be held at 
the Georgia Department of Natural Resources, Coastal Regional 
Headquarters, 1 Conservation Way, Brunswick, Georgia 31520. The June 
21, 2016, public hearing will be held at the South Carolina Department 
of Natural Resources, Marine Resources Office, 217 Ft. Johnson Road, 
Charleston, SC 29412. The June 23, 2016, public hearing will be held at 
the Crystal Coast Civic Center, 2nd Floor, 3505 Arendell St, Morehead 
City, NC 28557. People needing reasonable accommodations in order to 
attend and participate or who have questions about the public hearings 
should contact Andrew Herndon, NMFS, Southeast Regional Office (SERO), 
as soon as possible (see FOR FURTHER INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Jason Rueter, NMFS, Southeast Regional 
Office, 727-824-5312, [email protected]; Andrew Herndon, Southeast 
Regional Office, 727-824-5312, [email protected]; Lisa Manning, 
NMFS, Office of Protected Resources, 301-427-8466, 
[email protected].

SUPPLEMENTARY INFORMATION: In accordance with section 4(b)(2) of the 
ESA and our implementing regulations (50 CFR 424.12), this proposed 
rule is based on the best scientific information available concerning 
the range, biology, habitat, threats to the habitat, and conservation 
objectives for the Carolina and South Atlantic 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 physical features essential to the conservation of each DPS, 
the specific areas within the occupied areas that contain the essential 
physical features that may require special management considerations or 
protections, unoccupied areas that are essential to the DPSs' 
conservation, the federal activities that may impact the essential 
features or areas, and the potential impacts of designating critical 
habitat for each DPS. The economic, national security, and other 
relevant impacts of the proposed critical habitat designations for each 
DPS are described in the draft document titled, Impact Analysis of 
Critical Habitat Designation for the Carolina and South Atlantic 
Distinct Population Segments of Atlantic Sturgeon (Acipenser oxyrinchus 
oxyrinchus). This supporting document is available at http://sero.nmfs.noaa.gov/protected_resources/sturgeon/index.html or upon 
request (see ADDRESSES).

Background

    In 2012, we listed five DPSs of Atlantic sturgeon under the ESA: 
four were listed as endangered and one as threatened (77 FR 5880 and 
5914; February 6, 2012). Two DPSs of Atlantic sturgeon, both 
endangered, occur within the southeastern United States (Carolina DPS 
and the South Atlantic DPS; 77 FR 5914; February 6, 2012); and three 
DPSs

[[Page 36079]]

of Atlantic sturgeon (the endangered New York Bight DPS and Chesapeake 
Bay DPS, and the threatened Gulf of Maine DPS; 77 FR 5880, February 6, 
2012) occur in the northeast United States. On March 18, 2014, two non-
governmental organizations filed a lawsuit alleging NMFS had violated 
the ESA by failing to issue proposed and final rules designating 
critical habitat for Atlantic sturgeon DPSs. Pursuant to a court-
ordered settlement agreement, as modified, NMFS agreed to submit 
proposed rules designating critical habitat for all distinct population 
segments of Atlantic sturgeon to the Federal Register by May 30, 2016. 
This rule proposing to designate critical habitat for the Carolina and 
South Atlantic DPSs of Atlantic sturgeon is complemented by a 
concurrent rule proposing to designate critical habitat for the Gulf of 
Maine, New York Bight, and Chesapeake Bay DPSs of Atlantic sturgeon.

Atlantic Sturgeon Natural History and Status

    There are two subspecies of Atlantic sturgeon--the Gulf sturgeon 
(Acipenser oxyrinchus desotoi) and the Atlantic sturgeon (Acipenser 
oxyrinchus oxyrinchus). Historically, the Gulf sturgeon occurred from 
the Mississippi River east to Tampa Bay in Florida. Its present range 
extends from Lake Pontchartrain and the Pearl River system in Louisiana 
and Mississippi east to the Suwannee River in Florida. The Gulf 
sturgeon was listed as threatened under the ESA in 1991. This proposed 
rule addresses the Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), 
which is distributed along the eastern coast of North America. 
Historically, sightings of Atlantic sturgeon have been reported from 
Hamilton Inlet, Labrador, Canada, south to the St. Johns River, 
Florida. Reported occurrences south of the St. Johns River, Florida, 
have been rare but have increased recently with the evolution of 
acoustic telemetry coupled with increased receiver arrays.
    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; Sulak and Clugston, 1999; Billard 
and Lecointre, 2001; Secor and Niklitschek, 2002; Pikitch et al., 
2005).
    Atlantic sturgeon have all of the above 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; NMFS and USFWS, 2007; T. Savoy, CT 
DEEP, pers. comm.). Atlantic sturgeon are a long-lived, late-maturing, 
estuarine-dependent, anadromous species with a maximum lifespan of up 
to 60 years, although the typical lifespan is probably much shorter 
(Sulak and Randall, 2002; Balazik et al., 2010). Atlantic sturgeon 
reach lengths up to 14 feet (ft) (4.27 meters [m]), and weigh over 800 
pounds (363 kilograms). Many datasets demonstrate clinal variation in 
vital parameters of Atlantic sturgeon populations, with faster growth 
and earlier age at maturation in more southern systems. Atlantic 
sturgeon mature between the ages of 5 and 19 years in South Carolina 
(Smith et al., 1982), between 11 and 21 years in the Hudson River 
(Young et al., 1988), and between 22 and 34 years in the St. Lawrence 
River (Scott and Crossman, 1973). Atlantic sturgeon likely do not spawn 
every year. Multiple studies have shown that spawning intervals range 
from 1 to 5 years for males (Smith, 1985; Collins et al., 2000; Caron 
et al. 2002) and 2 to 5 years for females (Vladykov and Greeley, 1963; 
Van Eenennaam et al., 1996; Stevenson and Secor, 1999). Fecundity of 
Atlantic sturgeon has been correlated with age and body size, with egg 
production ranging from 400,000 to 8 million eggs per year (Smith et 
al., 1982; Van Eenennaam and Doroshov, 1998; Dadswell, 2006). The 
average age at which 50 percent of maximum lifetime egg production is 
achieved is estimated to be 29 years, approximately 3 to 10 times 
longer than for other bony fish species examined (Boreman, 1997).
    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 spawn in freshwater of 
rivers that flow into a coastal estuary. Spawning adults migrate 
upriver in the spring, typically during February and March in southern 
systems, April and May in mid-Atlantic systems, and May and July in 
Canadian systems (Murawski and Pacheco, 1977; Smith, 1985; Bain, 1997; 
Smith and Clugston, 1997; Caron et al., 2002). A fall spawning 
migration has been hypothesized for many years (Rogers and Weber, 1995; 
Weber and Jennings, 1996; Moser et al., 1998) and was recently verified 
in the Roanoke River, North Carolina, and the Altamaha River, Georgia 
(Smith et. al., 2015; Ingram and Peterson in Post et al., 2014). There 
is also a growing body of evidence that some Atlantic sturgeon river 
populations have two spawning seasons comprised of different spawning 
adults (Darden in Post et al., 2014; Balazik and Musick, 2015).
    Spawning typically occurs in flowing water upriver of the salt 
front of estuaries and below the fall line of large rivers (Borodin, 
1925; Leland, 1968; Scott and Crossman, 1973; Crance, 1987; Bain et 
al., 2000). The fall line is the boundary between an upland region of 
continental bedrock and an alluvial coastal plain, sometimes 
characterized by waterfalls or rapids. Spawning sites are well-
oxygenated areas with flowing water ranging in temperature from 13 
[deg]Celsius (C; 55 [deg]F (F)) to 26 [deg]C (79 [deg]F), 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; Balazik et al. 2012; Hager et al. 2014). 
Depth at which fish spawn and water depth leading to spawning sites may 
be highly variable. Atlantic sturgeon in spawning condition have been 
tracked and captured at depths up to 27m (Borodin 1925; Dees 1961; 
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). Hatching occurs approximately 94 to 140 
hours after egg deposition at temperatures of 68.0 [deg]F to 64.4 
[deg]F (20 to 18 [deg]C), respectively. The newly emerged larvae assume 
a demersal existence (Smith et al., 1980). The yolk sac larval stage is 
completed in about 8 to 12 days, during which time the larvae move 
downstream to rearing grounds (Kynard and Horgan, 2002). During the 
first half of their migration downstream, movement occurs only at 
night. During the day, larvae use benthic structure (e.g., gravel 
matrix) as refuge (Kynard and Horgan, 2002). During the latter half

[[Page 36080]]

of migration, when larvae are more fully developed, movement to rearing 
grounds occurs during both the day and night.
    Larval Atlantic sturgeon (i.e., less than 4 weeks old, with total 
lengths (TL) 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 (Holland 
and Yelverton, 1973; Dovel and Berggen, 1983; Waldman et al., 1996; 
Shirey et al., 1997; Collins et al., 2000; Secor et al., 2000; 
Dadswell, 2006; Hatin et al., 2007; NMFS and USFWS, 2007; Calvo et al., 
2010; Schueller and Peterson, 2010). Juveniles occur in oligohaline 
waters (salinity of 0.5 to 5 parts per thousand [ppt]) and mesohaline 
waters (salinity of 5 to 18 ppt) of the natal estuary during growth and 
development. They will eventually move into polyhaline waters (salinity 
of 18-30 ppt) before emigrating to the marine environment. Larger, 
presumably older, juveniles occur across a broader salinity range than 
smaller, presumably younger, juveniles (Bain, 1997; Shirey et al., 
1997; Haley, 1999; Bain et al., 2000; Collins et al., 2000; Secor et 
al., 2000; Hatin et al., 2007; McCord et al., 2007; Munro et al., 2007; 
Sweka et al., 2007; 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 (DO), which are inter-related environmental variables. 
In laboratory studies with salinities of 8 to 15 ppt and temperatures 
of 12 [deg]C and 20 [deg]C, juveniles less than a year old (also known 
as young-of-year [YOY]) had reduced growth at 40 percent dissolved 
oxygen saturation, grew best at 70 percent dissolved oxygen saturation, 
and selected conditions that supported growth (Niklitschek and Secor, 
2009 I; Niklitschek and Secor, 2009 II). 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 ppt 
(e.g., a salinity level associated with seawater), but grow faster in 
lower salinity waters (Niklitschek and Secor, 2009; Allen et al., 
2014). The best growth for both age groups occurred at DO 
concentrations greater than 6.5 milligrams per liter (mg/L). While 
specific DO concentrations at temperatures considered stressful for 
Atlantic sturgeon are not available, instantaneous minimum DO 
concentrations of 4.3 mg/L protect survival of shortnose sturgeon at 
temperatures greater than 29 [deg]C (EPA, 2003). However, data from 
Secor and Niklitschek (2001) show that shortnose sturgeon are more 
tolerant of higher temperatures than Atlantic sturgeon, and the ``high 
temperature'' for Atlantic sturgeon is actually considered 26 [deg]C 
(Secor and Gunderson, 1998).
    Once suitably developed, Atlantic sturgeon leave the natal estuary 
and enter marine waters (i.e., waters with salinity greater than 30 
ppt) which marks the beginning of the subadult life stage. In the 
marine environment, subadults mix with adults and subadults from other 
river systems (Bowen and Avise, 1990; Wirgin et al., 2012; Waldman et 
al., 2013; O'Leary et al., 2014). 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 (Vladykov and Greeley, 1963; Oliver et al., 2013).
    The exact spawning locations for Carolina and South Atlantic 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, historical 
accounts of where the caviar fishery occurred, capture of young-of-year 
and, in limited cases, capture of larvae and eggs. Spawning sites at 
multiple locations within the tidal-affected river likely help to 
ensure successful spawning given annual changes in the location of the 
salt wedge.

Critical Habitat Identification and Designation

    Critical habitat represents the habitat essential for the species' 
recovery and provides for the conservation of listed species in several 
ways (78 FR 53058, August 28, 2013). For example, 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 also 
provides a significant regulatory protection by ensuring that the 
Federal Government considers the effects of its actions in accordance 
with Section 7(a)(2) of the ESA and avoids or modifies those actions 
that are likely to destroy or adversely modify critical habitat. This 
requirement is in addition to the Section 7 requirement that Federal 
agencies ensure that their actions are not likely to jeopardize the 
continued existence of ESA-listed species. 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).
    Section 3(5)(A) of the ESA defines critical habitat as (i) the 
specific areas within the geographical area occupied by the species, at 
the time it is listed in accordance with the provisions of Section 4 of 
the ESA, on which are found those physical or biological features (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protections; and (ii) specific 
areas outside the geographical area occupied by the species at the time 
it is listed in accordance with the provisions of Section 4 of the ESA, 
upon a determination by the Secretary that such areas are essential for 
the conservation of the species (16 U.S.C. 1532[5][A]). Conservation is 
defined in Section 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 chapter 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.
    To identify and designate critical habitat, we considered 
information on the distribution of Atlantic sturgeon, the major life 
stages, habitat requirements of

[[Page 36081]]

those life stages, and conservation objectives that can be supported by 
identifiable physical or biological features (hereafter also referred 
to as ``PBFs'' or ``essential features''). In the final rule listing 
the Carolina and South Atlantic DPSs of Atlantic sturgeon (77 FR 5978, 
February 6, 2012), habitat curtailment and alteration, bycatch in 
commercial fisheries, and inadequacy of existing regulatory mechanisms 
were found to be the threats contributing to the endangered status of 
both DPSs. The Carolina and South Atlantic DPSs were found to be at 3% 
and 6% of their historical abundances, respectively, due to these 
threats. Therefore, we evaluated physical and biological features of 
the marine, estuarine, and riverine habitats of Atlantic sturgeon to 
determine what features are essential to the conservation of each DPS.
    Accordingly, our step-wise approach for identifying potential 
critical habitat areas for the Carolina and South Atlantic DPSs was to 
determine: the geographical area occupied by each DPS at the time of 
listing; the physical or biological features essential to the 
conservation of the DPSs; whether those features require special 
management considerations or protection; the specific areas of the 
occupied geographical area where these features occur; and, whether any 
unoccupied areas are essential to the conservation of either DPS.

Geographical Area Occupied by the Species

    ``Geographical area occupied'' in the definition of critical 
habitat is interpreted to mean the entire range of the species at the 
time it was listed, inclusive of all areas they use and move through 
seasonally (81 FR 7413; February 11, 2016). The marine ranges of the 
Carolina and South Atlantic DPSs of Atlantic sturgeon extend from the 
Hamilton Inlet, Labrador, Canada, to Cape Canaveral, Florida (77 FR 
5880, February 6, 2012). We did not consider geographical areas within 
Canadian jurisdiction (e.g., Minas Basin, Bay of Fundy), because we 
cannot designate critical habitat areas outside of U.S. jurisdiction 
(50 CFR 424.12(g)).
    The listing rule identified the known spawning rivers for each of 
the Atlantic sturgeon DPSs but did not describe the in-river ranges for 
the DPSs. The river ranges of each DPS consist of all areas downstream 
of either the fall line or the first obstacle to upstream migration 
(e.g., the lowest hydropower dam without fish passage for sturgeon) on 
each river within the range of the DPS. We identified the Carolina DPS 
freshwater range as occurring in the watersheds from the Roanoke River 
southward along North Carolina and South Carolina coastal areas to the 
Cooper River, South Carolina. The South Atlantic DPS freshwater range 
occurs from the Ashepoo-Combahee-Edisto (ACE) Basin in South Carolina 
to the St. Johns River, Florida.

Physical or Biological Features Essential for Conservation That May 
Require Special Management or Protection

    Within the geographical area occupied, critical habitat consists of 
specific areas on which are found those PBFs essential to the 
conservation of the species and that may require special management 
considerations or protection. PBFs are defined as the features that 
support the life-history needs of the species, including 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 relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. 50 CFR 424.02.
    Within the area occupied by Atlantic sturgeon, we considered the 
various types of habitat utilized by the DPSs for various life 
functions. Atlantic sturgeon spend the majority of their adult lives in 
offshore marine waters. They are known to travel extensively up and 
down the East Coast. As summarized in a number of summary documents 
including the Atlantic Sturgeon Status Review (NMFS and USFWS, 2007) 
and the Atlantic States Marine Fisheries Commission's (ASMFC) review of 
Atlantic coast diadromous fish habitat (Green et al., 2009), Atlantic 
sturgeon are benthic foragers and prey upon a variety of species in 
marine and estuarine environments (Bigelow and Schroeder, 1953; Scott 
and Crossman, 1973; Johnson et al., 1997; Guilbard et al., 2007; Savoy, 
2007; Dzaugis, 2013; McLean et al., 2013). In the ocean, Atlantic 
sturgeon typically occur in waters less than 50 m deep, travel long 
distances, exhibit seasonal coastal movements, and aggregate in 
estuarine and ocean waters at certain times of the year (Vladykov and 
Greeley, 1963; Holland and Yelverton 1973; Dovel and Berggren, 1983; 
Dadswell et al., 1984; Gilbert, 1989; Johnson et al., 1997; Rochard et 
al., 1997; Kynard et al., 2000; Savoy and Pacileo, 2003; Eyler et al., 
2004; Stein et al., 2004; Dadswell, 2006; Eyler, 2006; Laney et al., 
2007; NMFS and USFWS, 2007; Dunton et al., 2010; Erickson et al., 2011; 
Dunton et al., 2012; Oliver et al., 2013; Wirgin et al., 2015). Several 
winter congregations of Atlantic sturgeon in the marine environment are 
known to occur, though the exact location and importance of those areas 
in the southeast is not known, nor whether Atlantic sturgeon are drawn 
to particular areas based on physical or biological features of the 
habitat. While we can identify general movement patterns and behavior 
in the marine environment (e.g., aggregating behavior), due to the 
paucity of data on the DPSs' offshore needs and specific habitat 
utilization, we could not at this time identify PBFs essential to 
conservation in the marine environment for the Carolina or South 
Atlantic DPSs.
    Atlantic sturgeon utilize estuarine areas for foraging, growth, and 
movement. Atlantic sturgeon subadults and adults in non-spawning 
condition use estuarine waters seasonally, presumably for foraging 
opportunities, although evidence in the form of stomach content 
collection and analysis is limited (Savoy and Pacileo, 2007; Dzaugis, 
2013). We considered all studies that have collected Atlantic sturgeon 
stomach contents. All of the prey species identified are indicative of 
benthic foraging, but different types of prey were consumed and 
different 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). 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). 
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. The benthic invertebrates that 
comprise the diet of Atlantic sturgeon are found in soft substrates 
that are common and widespread in most estuaries. Limited data are 
available to differentiate areas of preferred prey items or higher prey 
abundance within or across estuaries. Due to the paucity of data on 
specific habitat or resource utilization, we could not at this time 
identify any specific

[[Page 36082]]

PBFs essential for the conservation of the Carolina and South Atlantic 
DPSs that support adult and subadult foraging in estuarine or marine 
environments.
    Atlantic sturgeon spawning behavior and early life history have 
been extensively studied and are fairly well understood, though the 
exact location of spawning sites on many rivers (particularly in the 
Southeast) is not known, or can change from time to time as water depth 
and substrate availability changes. However, there is substantial 
information in the scientific literature indicating the physical 
characteristics of Atlantic sturgeon spawning and early life history 
habitat. Therefore, to evaluate potential critical habitat, we focused 
on identifying the physical or biological features that support 
Atlantic sturgeon reproduction and survival of early life stages.
    The scientific literature indicates that Atlantic sturgeon spawning 
occurs well upstream, at or near the fall line of rivers, over hard 
substrate consisting of rock, pebbles, gravel, cobble, limestone, or 
boulders (Gilbert, 1989; Smith and Clugston, 1997). Hard substrate is 
required so that highly adhesive Atlantic sturgeon eggs have a surface 
to adhere to during their initial development and young fry can utilize 
the interstitial spaces between rocks, pebbles, cobble, etc., to hide 
from predators during downstream movement and maturation (Gilbert, 
1989; Smith and Clugston, 1997).
    Very low salinity (i.e., 0.0-0.5 ppt) is another important feature 
of Atlantic sturgeon spawning habitat. Exposure to even low levels of 
salinity can kill Atlantic sturgeon during their first few weeks of 
life, thus their downstream movement is limited until they can endure 
brackish waters (Bain et al., 2000). Shortnose sturgeon tend to spawn 
200-300 km upriver, preventing the youngest life stages from salt 
exposure too early in their development (Parker and Kynard, 2005; 
Kynard, 1997). Parker and Kynard (2005) also noted that long larval/
early juvenile downstream movement is common in both shortnose sturgeon 
from the Savannah River and Gulf sturgeon (a sub-species of Atlantic 
sturgeon), and that this may be a widespread adaptation of sturgeon 
inhabiting river systems in the southern United States. Due to their 
similar life history, Atlantic sturgeon most likely adapted a similar 
spawning strategy. Therefore, it is essential that the spawning area 
has low salinity, and that the spawning location is far enough upstream 
to allow newly-spawned Atlantic sturgeon to develop and mature on their 
downstream movement before encountering saline water. During their 
downstream movement, it is important for developing fish to forage in 
areas of soft substrate and to encounter transitional salinity zones to 
allow physiological adaptations to higher salinity waters.
    Minimum water depths for Atlantic sturgeon spawning are necessary 
to: (1) Allow adult fish to access spawning substrate, (2) adequately 
hydrate and aerate newly deposited eggs, and (3) facilitate successful 
development and downstream movement of newly spawned Atlantic sturgeon. 
However, water depth at these important spawning areas in the Southeast 
can be dynamic and portions of rivers may be dry or have little water 
at times due to natural seasonal river fluctuations, temporary drought 
conditions, and/or regulation by manmade structures such as dams; thus, 
these sites require protection to provide consistent services for 
sturgeon. The scientific literature indicates that Atlantic sturgeon 
spawn in water depths from 3-27 m (9.8-88.6 ft) (Borodin, 1925; Leland, 
1968; Scott and Crossman, 1973; Crance, 1987; Bain et al., 2000). 
However, much of this information is derived from studies of Atlantic 
sturgeon in northern United States and Canadian river systems. Atlantic 
sturgeon in the Southeast are likely spawning in much shallower water 
depths based on repeated observations by biologists of sturgeon with 
lacerations on their undersides from moving into extremely shallow 
water to spawn on hard substrate. In the Southeast, water depths no 
less than 1.2 m (4 ft) are deep enough to accommodate the body depth 
and spawning behavior of adult Atlantic sturgeon.
    We considered fluid dynamic features as another potential essential 
feature of Atlantic sturgeon spawning critical habitat. The scientific 
literature provides information on the importance of appropriate water 
velocity within Atlantic sturgeon spawning habitat and provides optimal 
flows for some rivers. Atlantic sturgeon spawn directly on top of 
gravel in fast flowing sections often containing eddies or other 
current breaks. Eddies promote position holding between spawning 
individuals, trap gametes facilitating fertilization, and diminish the 
probability of egg dislocation by currents--facilitating immediate 
adhesion of eggs to the gravel substrate (Sulak and Clugston, 1999). 
However, velocity data are lacking for many rivers, and where data are 
available, the wide fluctuations in velocity rates on a daily, monthly, 
seasonal, and annual basis make it difficult to identify a range of 
water velocity necessary for the conservation of the species. However, 
we do know that water flow must be continuous.
    Adult Atlantic sturgeon must be able to safely and efficiently move 
from downstream areas into upstream spawning habitats in order to 
successfully spawn. In addition, larvae and juvenile Atlantic sturgeon 
must be able to safely and efficiently travel from the upstream 
spawning areas downstream to nursery and foraging habitat. Therefore, 
an essential feature for Atlantic sturgeon spawning is unobstructed 
migratory pathways for safe movement of adults to and from upstream 
spawning areas as well as providing safe movement for the larvae and 
juveniles moving downstream. An unobstructed migratory pathway means an 
unobstructed river or a dammed river that still allows for passage.
    Water quality can be a critically limiting factor to Atlantic 
sturgeon in the shallow, warm, poorly oxygenated rivers of the 
southeast United States. Conditions in these river systems can change 
rapidly, particularly in rivers managed for hydropower production, and 
conditions can quickly become suboptimal or lethal for sturgeon. We 
considered essential water quality features that support movement and 
spawning of adults and growth and development of juvenile Atlantic 
sturgeon. 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 with salinities of 8 to 15 parts per thousand and 
temperatures of 12 [deg]C and 20 [deg]C, juveniles less than a year old 
(YOY) had reduced growth at 40 percent dissolved oxygen saturation, 
grew best at 70 percent dissolved oxygen saturation, and selected 
conditions that supported growth (Niklitschek and Secor, 2009 I; 
Niklitschek and Secor, 2009 II). Results obtained for age-1 juveniles 
(i.e., greater than 1 year old and less than 2 years old) indicated 
that they can tolerate salinities of 33 parts per thousand (i.e., a 
salinity level associated with seawater), but grow faster in lower 
salinity waters (Niklitschek and Secor, 2009; Allen et al., 2014). The 
best growth for both age groups occurred at dissolved oxygen 
concentrations greater than 6.5 mg/L. While specific dissolved 
concentrations at temperatures considered stressful for Atlantic 
sturgeon are not available, instantaneous minimum concentrations of 4.3 
mg/L protect survival of shortnose sturgeon at temperatures greater 
than 29 [deg]C (EPA, 2003). However, data from

[[Page 36083]]

Secor and Niklitschek (2001) show that shortnose sturgeon are more 
tolerant of higher temperatures than Atlantic sturgeon, thus the 
``stressful temperature'' for Atlantic sturgeon is considered 26 [deg]C 
(Secor and Gunderson, 1998).
    In summary, within the area occupied by Atlantic sturgeon, we 
considered the various types of habitat utilized by the species for 
various life functions. We determined that Atlantic sturgeon spend the 
majority of their adult lives in offshore marine waters where they are 
known to travel extensively up and down the East Coast. However, we 
could not identify any PBFs in marine waters essential for the 
conservation of the species. We also determined Atlantic sturgeon 
utilize estuarine areas for foraging, growth, and movement. The ability 
of subadults to find and access 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. Therefore, 
we determined a conservation objective for the Carolina and South 
Atlantic DPSs is to increase the abundance of each DPS by facilitating 
increased survival of all life stages. After examining the information 
available on spawning and early life history behavior and habitat, we 
also concluded that facilitating adult reproduction and juvenile and 
subadult recruitment into the adult population are other conservation 
objectives for the Carolina and South Atlantic DPSs of Atlantic 
sturgeon. We could not identify any specific PBFs essential for the 
conservation of the species that support adult and subadult foraging in 
estuarine or marine environments. We determined that protecting 
spawning areas, juvenile development habitat, the migratory corridors 
that allow adults to reach the spawning areas and newly spawned 
sturgeon to make a safe downstream migration, and water quality to 
support all life stages, will facilitate meeting the conservation 
objectives discussed above.
    Given the biological needs and tolerances, and environmental 
conditions for Atlantic sturgeon in southeast rivers as summarized 
above, and the habitat-based conservation objectives, the physical 
features essential for conservation are:
     Suitable hard bottom substrate (e.g., rock, cobble, 
gravel, limestone, boulder, etc.) in low salinity waters (i.e., 0.0-0.5 
ppt range) for settlement of fertilized eggs and refuge, growth, and 
development of early life stages;
     Transitional salinity zones inclusive of waters with a 
gradual downstream gradient of 0.5-30 ppt 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 and spawning condition adults. Water depths in 
main river channels must be deep enough to ensure continuous flow in 
the main channel at all times when any sturgeon life stage would be in 
the river. Water depths of at least 1.2 m are generally deep enough to 
facilitate effective adult migration and spawning behavior.
     Water quality conditions, especially in the bottom meter 
of the water column, with temperature and oxygen values that support: 
(1) Spawning; (2) annual and inter-annual adult, subadult, larval, and 
juvenile survival; and (3) larval, juvenile, and subadult growth, 
development, and recruitment. Appropriate temperature and oxygen values 
will vary interdependently, and depending on salinity in a particular 
habitat. For example, 6.0 mg/L D.O. for juvenile rearing habitat is 
considered optimal, whereas D.O. less than 5.0 mg/L for longer than 30 
days is considered suboptimal when water temperature is greater than 25 
[deg]C. In temperatures greater than 26 [deg]C, D.O. greater than 4.3 
mg/L is needed to protect survival and growth. Temperatures of 13 
[deg]C to 26 [deg]C for spawning habitat are considered optimal.

Need for Special Management Considerations or Protection

    We concluded that each of the essential features defined above may 
require special management considerations or protection. Barriers 
(e.g., dams, tidal turbines) to generate power or control water flow in 
rivers used by Atlantic sturgeon can damage or destroy bottom habitat 
needed for spawning and rearing of juveniles, restrict movement of 
adults to and from spawning grounds, prevent juveniles from accessing 
the full range of salinity exposure in the natal estuary, and alter 
water quality parameters, including water depth, temperature and 
dissolved oxygen, to the detriment of sturgeon reproduction, growth, 
and survival. Water withdrawals can similarly adversely impact water 
quality for Atlantic sturgeon spawning, recruitment, and development. 
Land development and commercial and recreational activities on a river 
can contribute to sediment deposition that affects water quality 
necessary for successful spawning and recruitment. A build-up of fine 
sediments may, for example, reduce the suitability of hard spawning 
substrate for Atlantic sturgeon egg adherence and reduce the 
interstitial spaces used by larvae for refuge from predators. Dredging 
to remove sediment build-up, to deepen harbors and facilitate vessel 
traffic, or to mine construction materials, may remove or alter hard 
substrate that is necessary for egg adherence and as refuge for larvae 
or soft substrate needed for juvenile foraging, 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 and recruitment may also require special management 
considerations or protection as a result of global climate change. 
Conditions in Southeast rivers used by sturgeon already threaten the 
species' survival and recovery due to exceedances of temperature 
tolerances and the sensitivity of sturgeon to low dissolved oxygen 
levels; these impacts will worsen as a result of global climate change 
and predicted warming of the southeast region. Many communities and 
commercial facilities withdraw water from the rivers containing the 
features essential to Atlantic sturgeon reproduction. Water withdrawals 
during drought events can affect flows, depths, and the position of the 
salt wedge, further impacting the water flow necessary for successful 
sturgeon reproduction and affect dissolved oxygen levels. Attempts by 
communities to control water during floods (e.g., spilling water from 
dams upriver of Atlantic sturgeon spawning and rearing habitat) can 
similarly alter flows to the point of dislodging fertilized eggs, 
washing early life stages downstream into more saline habitat before 
being developmentally ready, and create barriers (e.g., from debris) to 
upstream and downstream passage of adults and juveniles. We therefore 
conclude that the physical features essential to the conservation of 
the Carolina and South Atlantic DPSs may require special

[[Page 36084]]

management considerations or protections.

Specific Areas Containing the Essential Features Within the 
Geographical Area Occupied by the Species

    To identify where the essential features occur within areas 
occupied by Atlantic sturgeon, we reviewed the best available 
scientific information, including the 2007 Atlantic sturgeon status 
review (ASSRT, 2007), the ESA listing rules (77 FR 5914; February 6, 
2012), scientific research reports, information and data gathered 
during the peer-review process, and a database developed by the U.S. 
Geological Survey for mapping environmental parameters within East 
Coast Rivers to identify sturgeon habitat. We also considered 
information on the location of sturgeon spawning activity from 
scientific reports, as active spawning in an area would indicate that 
the essential features necessary for spawning are likely present. 
Information on documented spawning in specific areas in the Southeast 
is rare, but some does exist. For example, large sections of the 
Altamaha River have been found to support Atlantic sturgeon spawning 
activities for many years (Peterson et al., 2006; Peterson et al., 
2008). We reviewed reports from a NMFS-funded multi-year, multi-state 
research project on movement and migration of Atlantic sturgeon 
(Species Recovery Grant number NA10NMF4720036, Post et al., 2014). In 
these reports, researchers determined which portions of Southeastern 
rivers support spawning activities by looking at the upriver extent of 
sturgeon movements during spawning season.
    There are large areas of most rivers where data are still lacking. 
The available data also represent a snapshot in time, while the exact 
location of a habitat feature may change over time (e.g., water depth 
fluctuates seasonally, as well as annually, and even hard substrate may 
shift position). For example, some data indicate a change in substrate 
type with in a given location from year to year (e.g., from sand to 
gravel). It is not always clear whether such changes are due to an 
actual shift in substrate sediments or if the substrate sample was 
collected in a slightly different location between samplings. Although 
the habitat features may vary even at the same location, if any of the 
available data regarding a particular feature fell within the suitable 
range (i.e., salinity of 0-0.5 ppt, water depths from 1.2-27 m, or hard 
substrate [gravel, cobble, etc.]), we considered that the essential 
feature is present in the area.
    When data were not available for certain rivers or portions of 
occupied rivers, we used our general knowledge of Atlantic sturgeon 
spawning and applied river-specific information to determine the 
location of features essential to spawning. We considered salinity 
tolerance during the earliest life stages to determine appropriate 
habitat for larvae to develop as they mature. Available telemetry data 
suggest that most Atlantic sturgeon spawning activity in the Savannah 
and Altamaha start around river kilometer (RKM) 100 (Post et al., 
2014). Similar evidence from the Edisto, Neuse, and Tar-Pamlico rivers 
indicates spawning activity starts around RKM 80. Peer review comments 
on the Draft Economic and Biological Information to Inform Atlantic 
Sturgeon Critical Habitat Designation indicated that Atlantic sturgeon 
spawn below the fall line, unlike shortnose sturgeon that may spawn 
well above the fall line.
    In order to encompass all areas important for Atlantic sturgeon 
spawning, reproduction, and recruitment within rivers where spawning is 
believed to occur or may occur, we identified specific areas of 
critical habitat from the mouth (RKM 0) of each spawning river to the 
upstream extent of the spawning habitat. Other than an unexplained 
report of an Atlantic sturgeon carcass upstream of dams in the Santee 
Cooper system, we have no evidence that Atlantic sturgeon can pass 
upstream of dams (i.e., through turbines or fishways for shad and 
herring) and thus we are considering those upstream areas as unoccupied 
for the purpose of this rulemaking. Manmade barriers currently restrict 
upstream movement of Atlantic sturgeon in the Cape Fear, Santee-Cooper, 
and Savannah River systems. In other rivers, either the fall line, or 
for those rivers that do not reach the fall line, an easily 
identifiable landmark (e.g., a bridge) near the headwaters is 
considered the upstream extent of spawning habitat.
    To identify specific habitats used by an Atlantic sturgeon DPS in 
occupied rivers, we considered available information that described: 
(1) Capture location and/or tracking locations of Atlantic sturgeon 
identified to its DPS by genetic analysis; (2) capture location and/or 
tracking locations of 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 YOY and other juvenile age classes; and, (5) 
collection of eggs or larvae.

Large Coastal Rivers that Lack Essential Features

    Several large coastal rivers within the geographic area occupied by 
the Carolina and South Atlantic DPSs of Atlantic sturgeon do not appear 
to support spawning and juvenile recruitment or to contain suitable 
habitat features to support spawning. These rivers are the Chowan and 
New Rivers in North Carolina; the Waccamaw (above its confluence with 
Bull Creek which links it to the Pee Dee River), Sampit, Ashley, 
Ashepoo, and Broad-Coosawhatchie Rivers in South Carolina; and the St. 
Johns River, Florida. We have no information, current or historic, of 
Atlantic sturgeon using the Chowan and New Rivers in North Carolina. 
Recent telemetry work by Post et al. (2014) indicates that Atlantic 
sturgeon do not utilize the Sampit, Ashley, Ashepoo, and Broad-
Coosawhatchie Rivers in South Carolina. These rivers are short, coastal 
plains rivers that most likely do not contain suitable habitat for 
Atlantic sturgeon. Post et al. (2014) also found Atlantic sturgeon only 
use the portion of the Waccamaw River downstream of Bull Creek. Due to 
man-made structures and alterations, spawning areas in the St. Johns 
River are not accessible and therefore do not support a reproducing 
population. For these reasons, we are not designating these coastal 
rivers, or portions of the rivers, as critical habitat. For rivers we 
are proposing to designate as critical habitat, we have historical or 
current information that they support spawning and juvenile recruitment 
as described below.

Roanoke River

    The Roanoke River was identified as a spawning river for Atlantic 
sturgeon based on the capture of juveniles, the collection of eggs, and 
the tracking location of adults. Further, there was information 
indicating the historical use of the Roanoke River by Atlantic 
sturgeon.
    Atlantic sturgeon were historically abundant in the Roanoke River 
and Albemarle Sound, but declined dramatically in response to intense 
fishing effort in the late 1800's (Armstrong and Hightower, 2002). 
There is still a population present in the Albemarle Sound and Roanoke 
River (Armstrong and Hightower, 2002; Smith et al., 2014). DNA analyses 
of juveniles captured in Albemarle Sound indicate that these fish are 
genetically distinct from Atlantic sturgeon collected in

[[Page 36085]]

other systems (Wirgin et al., 2000; King et al., 2001).
    Historical records and recent research provide accounts of Atlantic 
Sturgeon spawning within the fall zone (RKM 204-242) of the Roanoke 
River (Yarrow, 1874; Worth, 1904; Armstrong and Hightower, 2002; Smith 
et al., 2014). Atlantic sturgeon remains from archaeological sites on 
the Roanoke River have been found as far upstream as RKM 261, 
approximately 19 miles above the upper end of the fall zone (Armstrong 
and Hightower, 2002; VanDerwarker, 2001); however, that was prior to 
the construction of dams now located throughout the river. The farthest 
downstream dam, the Roanoke Rapids Dam, is located near the fall line 
at RKM 221. No fish passage exists at this dam, so all Atlantic 
sturgeon are restricted to the lower 17 RKM of fall zone habitat, which 
extends from the Roanoke Rapids Dam to Weldon, North Carolina at RKM 
204 (Armstrong and Hightower, 2002; Smith et al., 2014).
    Historic and current data indicate that spawning occurs in the 
Roanoke River, where both adults and small juveniles have been 
captured. Since 1990, the North Carolina Division of Marine Fisheries 
(NCDMF) has conducted the Albemarle Sound Independent Gill Net Survey 
(IGNS). From 1990 to 2006, 842 sturgeon were captured ranging from 15.3 
to 100 centimeters (cm) fork length (FL), averaging 47.2 cm FL. One 
hundred and thirty-three (16%) of the 842 sturgeon captured were 
classified as YOY (41 cm TL, 35 cm FL); the others were subadults 
(ASSRT, 2007). A recent study by Smith et al. (2014), using acoustic 
telemetry data and egg collection during the fall of 2013, identified a 
spawning location near Weldon, North Carolina (RKM 204). The location 
contains the first shoals encountered by Atlantic sturgeon as they move 
upstream to spawn (Smith et al., 2014). The channel in this area is 
approximately 100 m wide and the substrate is primarily bedrock, along 
with fine gravel and coarse sediments in low-flow areas (Smith et al., 
2014). During the study, 38 eggs were collected during 21 days that 
spawning pads were deployed (Smith et al., 2014).
    A scientific survey also shows the presence of adult Atlantic 
sturgeon in the Roanoke River. Using side-scan sonar, Flowers and 
Hightower (2015) conducted surveys near the freshwater-saltwater 
interface with repeated surveys performed over 3 days. The surveys 
detected 4 Atlantic sturgeon greater than 1 m total length. Based on 
these detections, an abundance estimate for riverine Atlantic sturgeon 
of 10.9 (95% confidence interval 3-36) fish greater than 1 m was 
calculated for the Roanoke River. This estimate does not account for 
fish less than 1 m total length, occurring in riverine reaches not 
surveyed, or in marine waters.

Tar-Pamlico River

    The Tar-Pamlico River was identified as a spawning river for 
Atlantic sturgeon based on the evidence of spawning and the capture of 
juveniles. The Tar-Pamlico River, one of two major tributaries to 
Pamlico Sound, is dammed. However, all riverine habitat is accessible 
to Atlantic sturgeon in the Tar-Pamlico River, because the lower-most 
dam, the Rocky Mount Mill Pond Dam (RKM199), is located at the fall 
line.
    Evidence of spawning was reported by Hoff (1980), after the capture 
of very young juveniles in the Tar River. Two juveniles were observed 
dead on the bank of Banjo Creek, a tributary to the Pamlico System 
(ASSRT, 2007). A sampling program similar to the Albemarle Sound IGNS 
collected 14 Atlantic sturgeon in 2004. These fish ranged in size from 
460 to 802 mm FL and averaged 575 mm FL. The NCDMF Observer Program 
reported the capture of 12 Atlantic sturgeon in the Pamlico Sound from 
April 2004 to December 2005; these fish averaged 600 mm TL(ASSRT, 
2007).

Neuse River

    The Neuse River was identified as a spawning river for Atlantic 
sturgeon based on the evidence of spawning and the capture of 
juveniles. Evidence of spawning was reported by Hoff (1980), who noted 
captures of very young juveniles in the Neuse River. An independent 
gill net survey was initiated in 2001 following the Albemarle Sound 
IGNS methodology. Collections were low during the periods of 2001-2003, 
ranging from zero to one fish/year. However, in 2004, this survey 
collected 14 Atlantic sturgeon ranging from 460 to 802 mm FL, and 
averaging 575 mm FL. During the same time period (2002-2003), four 
Atlantic sturgeon (561-992 mm FL) were captured by North Carolina State 
University personnel sampling in the Neuse River (Oakley, 2003). 
Similarly, the NCDMF Observer Program documented the capture of 12 
Atlantic sturgeon in the Pamlico Sound from April 2004 to December 
2005; none of these were YOY or spawning adults, averaging 
approximately 600 mm TL (ASSRT, 2007).

Cape Fear River System

    The Cape Fear and Northeast Cape Fear Rivers were identified as 
spawning rivers for Atlantic sturgeon based on the capture of 
juveniles, the capture of adults in spawning condition, and the 
tracking location of adults, and information indicating the historical 
use by Atlantic sturgeon. In the late 1800's, the Cape Fear River had 
the largest landings of sturgeon in the southeastern United States 
(Moser and Ross, 1995). While species identification (i.e., shortnose 
or Atlantic sturgeon) is not possible, these landings suggest large 
populations of both species. The Cape Fear River is tidally influenced 
by diurnal tides up to at least RKM 96. The River is also dredged 
extensively to maintain a depth of 12 m up to RKM 49 and then a depth 
of 4 m up to Lock and Dam 1. There are numerous deep holes (>10 m) 
throughout this extent.
    A gill net survey for adult shortnose and juvenile Atlantic 
sturgeon was conducted in the Cape Fear River drainage from 1990 to 
1992, and replicated from 1997 to 2005. Each sampling period included 
two overnight sets. The 1990-1992 survey captured 100 Atlantic sturgeon 
below Lock and Dam #1 (RKM 95). In 1997, 16 Atlantic sturgeon were 
captured below Lock and Dam #1, an additional 60 Atlantic sturgeon were 
caught in the Brunswick (a tributary of the Cape Fear River), and 12 
were caught in the Northeast Cape River (Moser et al. 1998). 
Additionally, Ross et al. (1988 in Moser and Ross, 1995) reported the 
capture of a gravid female in the Cape Fear River.
    Recent telemetry work conducted in the Cape Fear and Northeast Cape 
Fear River showed that subadult Atlantic sturgeon movement and 
distribution followed seasonal patterns (Loeffler and Collier in Post 
et al., 2014). During summer months, Atlantic sturgeon distribution was 
shifted upriver with limited large-scale movements; during the coldest 
time of year, subadult fish were absent from the rivers and had 
migrated to the estuary or ocean (Loeffler and Collier in Post et al., 
2014). The high inter-annual return rates of tagged fish to the system 
demonstrate that Atlantic sturgeon have fidelity to these rivers; this 
implies that the Cape Fear River system may be the natal system for 
these fish (Loeffler and Collier in Post et al., 2014).
    Further evidence of the importance of this system is demonstrated 
by the movement patterns of one of five adult Atlantic sturgeon tagged 
during the study that has shown site fidelity. This individual fish was 
in ripe and running condition at the time of tagging. This fish 
subsequently returned to the Cape Fear system each of the following 
years (2013 and 2014) and has been detected farther upstream in both 
the Cape Fear

[[Page 36086]]

(RKM 95) and Northeast Cape Fear (RKM 132) rivers than any tagged 
subadult fish during this study. This fish did not use the fish passage 
rock arch ramp at Lock and Dam #1; however, at the time when it was 
present at the base of the dam, the rock arch ramp structure was only 
partially complete. In all years of the study this fish had movement 
patterns that are consistent with spawning behavior and demonstrate 
that both the Northeast Cape Fear and Cape Fear Rivers may be important 
spawning areas. While telemetry data have not indicated Atlantic 
sturgeon presence above Lock and Dam #1, we believe the fish passage 
present at the dam is successful or that fish pass through the lock. We 
base this determination on reports of Atlantic sturgeon above Lock and 
Dam #1 (J. Hightower, NCSU, pers. comm. To J. Rueter, NMFS, July 21, 
2015).

Pee Dee River System

    The Pee Dee River System was identified as providing spawning 
habitat used by Atlantic sturgeon based on the capture of juveniles, 
the capture of adults in spawning condition, and the tracking location 
of adults. Captures of age-1 juveniles from the Waccamaw River during 
the early 1980s suggest that a reproducing population of Atlantic 
sturgeon existed in that river, although the fish could have been from 
the nearby Pee Dee River (Collins and Smith1997). In 2003 and 2004, 
nine Atlantic sturgeon (48.4-112.2 cm FL) were captured in the Waccamaw 
River during the South Carolina Department of Natural Resources annual 
American shad gill net survey. While these fish were not considered 
YOY, Collins et al. (1996) note that unlike northern populations, in 
South Carolina, YOY are considered to be less than 50 cm TL or 42.5 cm 
FL, because growth rates are greater in the warmer southern waters 
compared to cooler northern waters. Therefore, the capture of a 48.4 cm 
FL sturgeon provides some evidence that YOY may be present in the 
Waccamaw River. Based on telemetry data, these YOY were thought to have 
been spawned in the Pee Dee River, and then traveled downstream through 
Bull Creek, and into the Waccamaw River. (B. Post, SCDNR, pers. comm. 
to J. Rueter, NMFS, July 9, 2015).
    Based on preliminary analyses of sturgeon detections during their 
study, Post et al. (2014) concluded the Pee Dee River system appears to 
be utilized by Atlantic sturgeon for summer/winter seasonal habitat as 
well as for spawning. From 2011 to 2014, 41 sturgeon were detected in 
upstream areas of the Pee Dee River that considered spawning areas. All 
10 Atlantic sturgeon that were originally implanted with transmitters 
in the Pee Dee System were later detected displaying upstream and 
downstream movement. Distinct movement patterns were evident for these 
fish as similar patterns were observed each year of the study period. 
Two of the 10 fish originally tagged in the Pee Dee System and many 
tagged fish from other systems made spawning runs in the Pee Dee River 
(Post et al., 2014).

Black River, South Carolina

    The Black River was identified as a spawning river for Atlantic 
sturgeon based on the capture of juveniles and the tracking location of 
adults. During a telemetry study from 2011 to 2014, Post et al. (2014) 
detected 10 juveniles and 10 adults utilizing the Black River. An adult 
male was detected at the last receiver station in the river one year 
(RKM 70.4) and the next to last receiver station in a subsequent year. 
While the receiver stations were not at the fall line, they were very 
far upriver, and it is likely that the only reason this fish traveled 
so far upriver was to spawn (B. Post, SCDNR, pers. comm. to J. Rueter, 
NMFS PRD, July 9, 2015). Juveniles were located as far upstream as RKM 
42.1, suggesting the Black River is also an important foraging/refuge 
habitat.

Santee and Cooper Rivers

    The Santee-Cooper River system was identified as a spawning river 
system for Atlantic sturgeon based on the capture of YOY. The Santee 
River basin is the second largest watershed on the Atlantic Coast of 
the United States; however with the completion of Wilson Dam in the 
1940s, upstream fish migrations were restricted to the lowermost 145 
RKMs of the Santee River. Following construction of the Wilson and 
Pinopolis Dams, the connectivity between the coastal plain and piedmont 
was lost. In the 1980s, a fish passage facility at the St. Stephen 
powerhouse, designed to pass American shad and blueback herring, was 
completed that attempted to restore connectivity throughout the system. 
(Fish passage and fishway mean any structure on or around artificial 
barriers to facilitate diadromous fishes' natural migration). The 
passage facility has not been successful for Atlantic sturgeon (Post et 
al., 2014). However, in 2007 an Atlantic sturgeon entered the fish 
passage facility at the fishway to the lift, presumably in an attempt 
to migrate upstream to spawn, and was subsequently physically removed 
and then released downstream into the Santee River (A. Crosby, SCDNR, 
pers. comm.).
    Historically, the Cooper River was a small coastal plain river that 
fed into Charleston Harbor. The completion of the Santee Cooper 
hydropower project in the 1940s dramatically changed river discharge in 
the Cooper River. From the 1940s into the 1980s, nearly all river 
discharge of the Santee River was diverted through the Santee Cooper 
project, run through the hydroelectric units in Pinopolis Dam, and 
discharged down the Tailrace Canal and into the Cooper River. In the 
1980s, the Rediversion Project redirected part of the system's 
discharge back to the Santee River; however, a significant discharge of 
freshwater still flows into the Cooper River. The Cooper River provides 
the dominant freshwater input for the Charleston Harbor and provides 77 
RKM of riverine habitat (Post et al., 2014).
    The capture of 151 subadults, including age-1 fish in 1997 
indicates a population exists in the Santee River (Collins and Smith, 
1997). Four juvenile Atlantic sturgeon, including YOY, were captured in 
the winter of 2003 in the Santee (N = 1) and Cooper (N = 3) Rivers 
(McCord, 2004). These data support the existence of a spawning 
population, but South Carolina Department of Natural Resources 
biologists working in the Santee-Cooper system believe the smaller fish 
are pushed into the system from the Pee Dee and/or Waccamaw River 
during flooding conditions (McCord, 2004). This hypothesis is based on 
the lack of access to suitable spawning habitat due to the locations of 
the Wilson Dam and St. Stephen Powerhouse on the Santee River and the 
Pinopolis Dam on the Cooper River. Nonetheless, the Santee-Cooper River 
system appears to be important foraging and refuge habitat and could 
serve as important spawning habitat once access to historical spawning 
grounds is restored through a fishway prescription under the Federal 
Power Act (NMFS 2007).
    In a recent telemetry study by Post et al. (2014), four Atlantic 
sturgeon were tagged in the Santee River from 2011 to 2014. Of the four 
Atlantic sturgeon tagged in the Santee River, one was detected in the 
river, one was detected at the mouth of the river, and the other two 
have not been detected in the Santee River system since being tagged. 
There was no detectable spawning run or pattern of movement for the 
tagged fish that remained in the Santee River (Post et al., 2014). 
There were no Atlantic sturgeon captured in the Cooper River during the 
Post et al., 2014 study. There were seven Atlantic sturgeon detected in 
the Cooper River that had been tagged in other systems.

[[Page 36087]]

The Atlantic sturgeon that were detected in the Cooper River were more 
commonly detected in the saltwater tidal zone, with the exception of 
one that made a presumed spawning run to Pinopolis Dam in the fall of 
2013 (Post et al., 2014).

Edisto River

    The Edisto is the largest river in the Ashepoo, Combahee, Edisto 
(ACE) Basin; begins in the transition zone between piedmont and coastal 
plain; and is unimpeded for its entire length. It is the longest free 
flowing blackwater river in South Carolina. During excessive rainy 
seasons it will inundate lowlands and swamps, and the flow basin 
increases to a mile wide or more. The Edisto River was identified as a 
spawning river for Atlantic sturgeon based on the capture of an adult 
in spawning condition and capture location and tracking of adults.
    Spawning adults (39 in 1998) and YOY (1,331 from 1994-2001) have 
been captured in the ACE basin (Collins and Smith, 1997; ASSRT, 2007). 
One gravid female was captured in the Edisto River during sampling 
efforts in 1997 (ASSRT, 2007). Seventy-six Atlantic sturgeon were 
tagged in the Edisto River during a 2011 to 2014 telemetry study (Post 
et al., 2014). Fifty-eight of the 76 Atlantic sturgeon tagged were 
detected in the Edisto River during the study. Distinct movement 
patterns of Atlantic sturgeon were evident. Fish entered the river 
between April and June and were detected in the saltwater tidal zone 
until water temperature decreased below 25[deg] C. They then moved into 
the freshwater tidal area, and some fish made presumed spawning 
migrations in the fall around September-October. Spawning migrations 
were thought to be occurring based on fish movements upstream to the 
presumed spawning zone between RKM 78 and 210. Fish stayed in these 
presumed spawning zones for an average of 22 days. The tagged Atlantic 
sturgeon left the river system by November. A number of tagged 
individuals were detected making such movements during multiple years 
of the study. Only those fish that were tagged in the Edisto River were 
detected upstream near presumed spawning grounds, while fish detected 
in the Edisto River, but tagged elsewhere, were not detected near the 
presumed spawning areas. In the winter and spring, Atlantic sturgeon 
were generally absent from the system except for a few fish that 
remained in the saltwater tidal zone (Post et al., 2014).

Combahee--Salkehatchie River

    The Combahee--Salkehatchie River was identified as a spawning river 
for Atlantic sturgeon based on capture location and tracking locations 
of adults and the spawning condition of an adult. Spawning adults (39 
in 1998) and YOY (1,331 from 1994-2001) have been captured in the ACE 
basin (Collins and Smith, 1997; ASSRT, 2007). One running ripe male was 
captured in the Combahee River during a sampling program in 1997 
(ASSRT, 2007). Seven Atlantic sturgeon were captured and five were 
tagged during a 2010 and 2011 telemetry study (Post et al., 2014). 
Atlantic sturgeon that were tagged in the Combahee River were absent 
from the system for the majority of the study period. An Atlantic 
sturgeon that was tagged in June of 2011 left the system in the fall of 
2011, returned in July 2012 and left the system again in the fall of 
2012. This fish was detected the farthest upstream of any tagged 
Atlantic sturgeon in the Combahee River (RKM 56). Another individual 
was identified as a running ripe male at capture in the Combahee River 
in March 2011, was relocated exhibiting spawning behavior in the North 
East Cape Fear River, NC in March, 2012, and in 2014 was detected from 
February-April in the Pee Dee System.

Savannah River

    The Savannah River was identified as a spawning river for Atlantic 
sturgeon based on capture location and tracking locations of adults and 
the collection of larvae. Forty three Atlantic sturgeon larvae were 
collected in upstream locations (RKM 113-283) near presumed spawning 
locations (Collins and Smith, 1997). Seven Atlantic sturgeon were also 
tagged from 2011 to 2014 and distinct movement patterns were evident 
(Post et al., 2014). In 2011, one individual was detected travelling 
upstream in mid-April and remained at a presumed spawning area (RKM 200 
to 301) through mid-September. Two Atlantic sturgeon migrated into the 
system and upstream to presumed spawning grounds in 2012. The first 
entered the system in mid-August and returned downriver in mid-
September; the other entered the system in mid-September and returned 
downriver in mid-October. Four Atlantic sturgeon entered the Savannah 
River and migrated upstream during the late summer and fall months in 
2013. Two Atlantic sturgeon previously tagged in the Savannah River 
made upstream spawning movements; this was the second year (2011) one 
of these fish was detected making similar upstream movements. These two 
fish were also detected immediately upstream of the New Savannah Bluff 
Lock and Dam (RKM 301). It is unknown if they passed through the lock 
or swam over the dam during high flows. There is a strong possibility 
that one fish may have been detected by the receiver directly upstream 
while still remaining downstream of the dam and while flow control 
gates were in a full open position. Atlantic sturgeon in the Savannah 
River were documented displaying similar behavior three years in a 
row--migrating upstream during the fall and then being absent from the 
system during spring and summer.

Ogeechee River

    The Ogeechee River was identified as a spawning river for Atlantic 
sturgeon based on tracking of adults and YOY. Seventeen Atlantic 
sturgeon considered to be YOY (less than 30 cm TL) were collected in 
2003 by the Army's Environmental and Natural Resources Division (AENRD) 
at Fort Stewart, Georgia. An additional 137 fish were captured by the 
AENRD in 2004. Nine of these fish measured less than 41 cm TL and were 
considered YOY. During a telemetry study from 2011 to 2014, there were 
no capture or tagging efforts conducted in the Ogeechee River; however, 
40 Atlantic sturgeon were detected in the Ogeechee River (Ingram and 
Peterson in Post et al., 2014).

Altamaha River

    The Altamaha River and its major tributaries the Oconee and 
Ocmulgee Rivers were identified as spawning rivers for Atlantic 
sturgeon based on capture location and tracking of adults and the 
capture of adults in spawning condition. The Altamaha River supports 
one of the healthiest Atlantic sturgeon subpopulations in the 
Southeast, with over 2,000 subadults captured in trammel nets, 800 of 
which were nominally age-1 as indicated by size (ASSRT, 2007). A survey 
targeting Atlantic sturgeon was initiated in 2003 by the University of 
Georgia. By October 2005, 1,022 Atlantic sturgeon had been captured 
using trammel and large gill nets. Two hundred and sixty-seven of these 
fish were collected during the spring spawning run in 2004 (N = 74 
adults) and 2005 (N = 139 adults). From these captures, 308 (2004) and 
378 (2005) adults were estimated to have participated in the spring 
spawning run, representing 1.5% of Georgia's historical spawning stock 
(females) as estimated from U.S. Fish Commission landing records 
(Schueller and Peterson 2006, Secor 2002).

[[Page 36088]]

    In a telemetry study by Peterson et al. (2006), most tagged adult 
Atlantic sturgeon were found between RKM 215 and 420 in October and 
November when water temperatures were appropriate for spawning. There 
are swift currents and rocky substrates throughout this stretch of 
river (Peterson et al., 2006). Two hundred thirteen adults in spawning 
condition were captured in the Altamaha system in 2004-2005 (Peterson 
et al., 2006).
    Forty-five adult Atlantic sturgeon were captured and tagged from 
2011 to 2013 (Ingram and Peterson in Post et al., 2014). Telemetry data 
from the tagged individuals indicated that the fish were present in the 
system from April through December. Twenty-six fish made significant (> 
160 RKM) migrations upstream with eight fish making the migration in at 
least two of the years and four making the migration in all three years 
of the study. No site fidelity was apparent based on these data; 
however, an upriver site near the confluence of the Ocmulgee (RKM 340-
350) was visited by multiple fish in multiple years. Fish migrated 
upstream into both the Ocmulgee and Oconee Rivers, but the majority 
entered the Ocmulgee River. The maximum extent of these upriver 
migrations was RKM 408 in the Ocmulgee River and RKM 356 in the Oconee 
River (Ingram and Peterson in Post et al., 2014).
    Two general migration patterns were observed for fish in this 
system. Early upriver migrations that began in April--May typically 
occurred in two steps, with fish remaining at mid-river locations 
during the summer months before continuing upstream in the fall. The 
late-year migrations, however, were typically initiated in August or 
September and were generally non-stop. Regardless of which migration 
pattern was used during upstream migration, all fish exhibited a one-
step pattern of migrating downstream in December and early January 
(Ingram and Peterson in Post et al., 2014).

Satilla River

    The Satilla River was identified as a spawning river for Atlantic 
sturgeon based on the capture of adults in spawning condition. Ong et 
al. (1996) captured four reproductively mature Atlantic sturgeon on 
spawning grounds during the spawning season in the Satilla River.

St. Marys River

    The St. Marys River was identified as a spawning river for Atlantic 
sturgeon based on the capture of YOY Atlantic sturgeon. Atlantic 
sturgeon were once thought to be extirpated in the St. Marys River. 
However, nine Atlantic sturgeon were captured in sampling efforts 
between May 19 and June 9, 2014. Captured fish ranged in size from 293 
mm (YOY) to 932 mm (subadult). This is a possible indication of a slow 
and protracted recovery in the St. Marys (D. Peterson, UGA, pers. comm. 
to J. Rueter, NMFS PRD, July 8, 2015).

Unoccupied Critical Habitat Areas

    ESA section 3(5)(A)(ii) defines critical habitat to include 
specific areas outside the geographical area occupied if the areas are 
determined by the Secretary to be essential for the conservation of the 
species. Our regulations at 50 CFR 424.12(g) also state: ``The 
Secretary will not designate critical habitat within foreign countries 
or in other areas outside of the jurisdiction of the United States.'' 
At the present time, the geographical area occupied by the Carolina and 
South Atlantic DPS of Atlantic sturgeon which is within the 
jurisdiction of the United States is limited to waters off the U.S. 
east coast from Maine through Florida, seaward to the boundary of the 
U.S. Exclusive Economic Zone, and upstream in freshwater systems to the 
fall line or the first impediment to fish passage. We have identified 
three areas outside the geographical area occupied by these species 
that are essential for their conservation, and therefore are proposing 
to designate these unoccupied areas as critical habitat for the 
Carolina and South Atlantic DPS of Atlantic sturgeon. For the Carolina 
DPS, we have identified the Cape Fear River from Huske Lock and Dam 
(Lock and Dam #3) downstream to Lock and Dam #2. We also identified the 
rivers of the Santee-Cooper basin from the Parr Shoals Dam on the Broad 
River and the Wateree Dam on the Wateree River downstream to the Wilson 
Dam and St. Stephen Powerhouse on the Santee River and Pinopolis Dam on 
the Cooper River. For the South Atlantic DPS we have identified the 
Savannah River from the Augusta Diversion Dam downstream to the New 
Savannah Bluff Lock and Dam.
    As stated previously, the key habitat-based conservation objectives 
for these DPSs are facilitating adult reproduction and facilitating 
recruitment into the adult population by protecting spawning areas, 
juvenile development habitat, and the migratory corridors that allow 
adults to reach the spawning areas and newly spawned sturgeon to make a 
safe downstream movement. To successfully fulfill these conservation 
objectives, the areas above the dams on these three systems need to be 
protected until it becomes accessible to the species. Available data 
suggest that these unoccupied areas did historically, or could, serve 
as spawning habitat for Atlantic sturgeon should they become accessible 
in the future.
    Telemetry data from the Cape Fear River discussed above (Loeffler 
and Collier in Post et al., 2014) indicate that Atlantic sturgeon make 
spawning movements up the Cape Fear River before being stopped at Lock 
and Dam #1; in one case the fish went downstream and then moved up the 
Northeast Cape Fear River. However, there have been reports of Atlantic 
sturgeon above Lock and Dam #1 (J. Hightower, NCSU, pers. comm. To J. 
Rueter, NMFS, July 21, 2015). It is likely the fish moving up to Lock 
and Dam #2 are attempting to reach historic upstream spawning areas. 
Using the fall line as a guide, only 33 percent of the historical 
habitat is available to Atlantic sturgeon below Lock and Dam #1 (96 km 
of 292 km). In some years, the salt water interface reaches Lock and 
Dam #1; so, spawning adults in the Cape Fear River either do not spawn 
in such years or spawn in the major tributaries of the Cape Fear River 
(i.e., Black River or Northeast Cape Fear rivers) that are not 
obstructed by dams. There may be some exposed outcrops that would 
provide suitable substrate necessary for spawning between Lock and Dam 
#2 and Huske Lock and Dam (J. Facendola, NCDMF pers. comm. to J. 
Rueter, NMFS, July 20, 2015). The primary goal of the Cape Fear River 
Partnership is restoring access to historic migratory fish habitat. 
Their 2013 action plan identifies passage at Lock and Dam #2 as a 
priority and includes Atlantic sturgeon as a target species (Cape Fear 
River Partnership, 2013). In September 2015, the North Carolina General 
Assembly approved $250,000 to be used towards the design and 
engineering of a rock arch weir to help with fish passage at Lock and 
Dam #2 and matching funds are currently being sought. These efforts 
indicate to us it is likely a rock arch weir will provide passage at 
Lock and Dam #2 so that sturgeon can utilize the habitat upstream of 
Lock and Dam #2 up to the Huske Lock and Dam in the future. We propose 
to include the area from Huske Lock and Dam (Lock and Dam #3) 
downstream to Lock and Dam #2 as unoccupied critical habitat on the 
Cape Fear River because Atlantic sturgeon behavior indicates they are 
attempting to move upstream to spawning habitat located beyond this 
barrier, and we consider this historical spawning habitat essential to 
the conservation of the DPS.
    The lowermost dams on the Santee and Cooper Rivers limit, and may

[[Page 36089]]

eliminate altogether, viable spawning grounds for Atlantic sturgeon. 
Using the fall line as the upper region of spawning habitat, it is 
estimated that only 38 percent of the historical habitat is available 
to Atlantic sturgeon in the Santee-Cooper River system today. There are 
a number of anecdotal reports of Atlantic sturgeon making spawning runs 
to the dams and either returning downstream or attempting to spawn at 
the dams. These dams may not be far enough upstream for eggs and larvae 
to develop before entering higher salinity waters where they perish. 
The Santee Cooper Diversion Dam and Canal Project created two 
reservoirs: the Wilson Dam on the Santee River created Lake Marion, and 
the Pinopolis Dam on the Cooper River created Lake Moultrie. Currently, 
relicensing by the Federal Energy Regulatory Commission (FERC) for the 
South Carolina Public Service Authority (SCPSA) Hydroelectric Project, 
located in South Carolina is ongoing. Fish passage past these two dams 
was prescribed as part of the relicensing. Once this passage is 
constructed, the first dam Atlantic sturgeon will encounter is the 
abandoned Granby Lock and Dam on the Congaree River. This dam could 
represent a hindrance, but likely not a complete obstacle, to upstream 
movements of Atlantic sturgeon because remnant parts of the dam may 
deter bottom oriented species. Above the Granby Lock and Dam, Atlantic 
sturgeon will encounter the Columbia Dam on the Broad River. In 2002 we 
prescribed a fishway to be constructed at the Columbia Dam for American 
shad, blueback herring, and American eel. Concurrently we reserved 
authority to prescribe a fishway for sturgeon, because although such a 
fishway was warranted, a safe and effective passage mechanism was not 
yet established. The fishway constructed to pass the target species 
(American shad, blueback herring, and American eel) incorporated 
``sturgeon friendly'' features as sturgeon are potential future target 
species. Field work conducted during consultation by NMFS Habitat 
Conservation Division established that excellent spawning and juvenile 
rearing habitat exists in the 24 miles of large river shoals between 
the Columbia Dam and the next upstream dam, the Parr Shoals Dam (DOC, 
2002). While sturgeon have not been documented as currently passing 
through the Columbia Dam fishway, our reservation of authority in the 
2002 FERC relicensing provides us the expectation the Columbia Dam will 
be passable in the future so that sturgeon can utilize the upstream 24-
miles of shoal habitat for spawning and rearing. Additionally, we have 
information on a population of shortnose sturgeon that has been 
stranded above Pinopolis and Wilson Dams for decades, and there is a 
good deal of data on their spawning activity in the Congaree, Broad, 
and Wateree Rivers. Shortnose sturgeon spawning habitat requirements 
are similar to Atlantic sturgeon, thus we believe these unoccupied 
areas contain suitable spawning habitat for Atlantic sturgeon. We 
conclude that these unoccupied spawning habitats are essential to the 
conservation of the DPS, and therefore, we are proposing to designate 
unoccupied critical habitat from the Wateree Dam on the Wateree River 
and from the Parr Shoals Dam on the Broad River downstream to the 
Wilson Dam and St. Stephen Powerhouse on the Santee River and the 
Pinopolis Dam on the Cooper River.
    The Savannah River has some fish passage at New Savannah Bluff Lock 
and Dam, but successful passage of Atlantic sturgeon is not believed to 
occur. The historical primary spawning habitat for Atlantic sturgeon 
(and only shoal habitat on the Savannah River), the Augusta Shoals, is 
not accessible to Atlantic sturgeon because it lies above the New 
Savannah Bluff Lock and Dam. Sturgeon are currently frequently seen at 
the base of the New Savannah Bluff Lock and Dam during spawning season, 
indicating either crowding below the dam or individual motivation to 
spawn farther upriver, or both. We conclude this unoccupied area is 
essential to the conservation of the DPS and therefore, we propose to 
designate the Savannah River from the Augusta Diversion Dam downstream 
to the New Savannah Bluff Lock and Dam as critical habitat.

Application of ESA Section 4(a)(3)(B)(i) (Military Lands)

    Section 4(a)(3)(B) of the ESA prohibits designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (DOD), 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 benefit to 
the species for which critical habitat is proposed for designation. The 
legislative history to this provision explains:

    The conferees would expect the [Secretary] to assess an INRMP's 
potential contribution to species conservation, giving due regard to 
those habitat protection, maintenance, and improvement projects and 
other related activities specified in the plan that address the 
particular conservation and protection needs of the species for 
which critical habitat would otherwise be proposed. Consistent with 
current practice, the Secretary would establish criteria that would 
be used to determine if an INRMP benefits the listed species for 
which critical habitat would be proposed (Conference Committee 
report, 149 Cong. Rec. H. 10563 (November 6, 2003)).

    In February 2014 and October 2015, we requested information from 
the DOD to assist in our analysis. Specifically, we asked for a list of 
facilities that occur within the potential critical habitat areas for 
the Carolina and South Atlantic DPSs of Atlantic sturgeon and available 
INRMPs for those facilities. We received information on two INRMPs for 
DOD facilities on or near the banks of rivers included in the proposed 
designation--the Naval Submarine Base Kings Bay (GA), on the St. Marys 
River and Joint Base Charleston (SC), on the Cooper River. At neither 
base does the Navy own or control, or have designated for its use, 
lands or geographic areas being proposed as critical habitat. Thus, 
there are no areas where the INRMP prohibition is applicable. Notably, 
the Department of Navy response indicated a desire to review and revise 
applicable INRMPs to provide appropriate and feasible conservation 
benefits to the species if possible.

Application of ESA Section 4(b)(2)

    Section 4(b)(2) of the ESA requires that we consider the economic 
impact, impact on national security, and any other relevant impact, of 
designating any particular area as critical habitat. Additionally, the 
Secretary has the discretion to consider excluding any area from 
critical habitat if she determines, based upon the best scientific and 
commercial data available, the benefits of exclusion (that is, avoiding 
some or all of the impacts that would result from designation) outweigh 
the benefits of designation. The Secretary may not exclude an area from 
designation if exclusion will result in the extinction of the species. 
Because the authority to exclude is discretionary, exclusion is not 
required for any particular area under any circumstances.
    The ESA provides the USFWS and NMFS (the Services) with broad 
discretion in how to consider impacts. See, H.R. Rep. No. 95-1625, at 
17, reprinted in 1978 U.S.C.C.A.N. 9453, 9467 (1978) (``Economics and 
any other relevant impact shall be considered by the Secretary in 
setting the limits of critical habitat for such a species. The 
Secretary is not required to give economics or any other ``relevant 
impact'' predominant consideration in

[[Page 36090]]

his specification of critical habitat . . . The consideration and 
weight given to any particular impact is completely within the 
Secretary's discretion.''). Courts have noted the ESA does not contain 
requirements for any particular methods or approaches. See, e.g., Bldg. 
Indus. Ass'n of the Bay Area et al. v. U.S. Dep't. of Commerce et al., 
No. 13-15132, 9th Cir., July 7, 2015 (upholding district court's ruling 
that the ESA does not require the agency to follow a specific 
methodology when designating critical habitat under section 4(b)(2). 
For this proposed rule, we followed the same approach to describing and 
evaluating impacts as we have for recent critical habitat rulemakings 
in the NMFS Southeast Region.
    The following discussion of impacts summarizes the analysis 
contained in our Draft Impact Analysis of Critical Habitat Designation 
for the Carolina and South Atlantic Distinct Population Segments of 
Atlantic Sturgeon (Acipenser oxyrinchus oxyrinchus) (Draft Impacts 
Analysis), which identifies the economic, national security, and other 
relevant impacts that we projected would result from including each of 
the fourteen occupied and three unoccupied specific areas in the 
proposed critical habitat designation. We considered these impacts when 
deciding whether to exercise our discretion to propose excluding 
particular areas from the designation. Both positive and negative 
impacts were identified and considered (these terms are used 
interchangeably with benefits and costs, respectively). Impacts were 
evaluated in quantitative terms where feasible, but qualitative 
appraisals were used where that is more appropriate to particular 
impacts. The Draft Impacts Analysis Report is available on NMFS's 
Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/protected_resources/sturgeon/index.html.
    The primary impacts of a critical habitat designation result from 
the ESA Section 7(a)(2) requirement that Federal agencies ensure their 
actions are not likely to result in the destruction or adverse 
modification of critical habitat, and that they consult with NMFS in 
fulfilling this requirement. Determining these impacts is complicated 
by the fact that Section 7(a)(2) also requires that Federal agencies 
ensure their actions are not likely to jeopardize the species' 
continued existence. One incremental impact of designation is the 
extent to which Federal agencies modify their proposed actions to 
ensure they are not likely to destroy or adversely modify the critical 
habitat beyond any modifications they would make because of listing and 
the jeopardy requirement. When the same modification would be required 
due to impacts to both the species and critical habitat, the impact of 
the designation is coextensive with the ESA listing of the species 
(i.e., attributable to both the listing of the species and the 
designation critical habitat). Relevant, existing regulatory 
protections are referred to as the ``baseline'' and are also discussed 
in the Draft Impacts Analysis. In this case, notable baseline 
protections include the ESA listings of not only Atlantic sturgeon, but 
the co-occurring shortnose sturgeon.
    The Draft Impacts Analysis Report describes the projected future 
federal activities that would trigger Section 7 consultation 
requirements because they may affect the essential features, and 
consequently may result in economic costs or negative impacts. The 
report also identifies the potential national security and other 
relevant impacts that may arise due to the proposed critical habitat 
designation, such as positive impacts that may arise from conservation 
of the species and its habitat, state and local protections that may be 
triggered as a result of designation, and education of the public to 
the importance of an area for species conservation.

Economic Impacts

    Economic impacts of the critical habitat designation result through 
implementation of Section 7 of the ESA in consultations with Federal 
agencies to ensure their proposed actions are not likely to destroy or 
adversely modify critical habitat. These economic impacts may include 
both administrative and project modification costs; economic impacts 
that may be associated with the conservation benefits of the 
designation are described later.
    We examined the ESA Section 7 consultation record over the last 10 
years, as compiled in our Public Consultation Tracking System (PCTS) 
database, to identify the types of Federal activities that may 
adversely affect proposed Atlantic sturgeon critical habitat. We 
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. No new categories of activities were 
identified through this process. 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.
    Fourteen categories of activities implemented by ten different 
federal entities were identified as likely to recur in the future and 
have the potential to affect the essential features (total number of 
projected consultations over 10 years indicated in parentheses):
    1. U.S. Army Corps of Engineers (USACE)--Navigation maintenance 
dredging, harbor expansion (14)
    2. USACE--Water Resources Development Act (WRDA) flood control, 
ecosystem restoration studies (6)
    3. USACE--WRDA dam operations, repair, fishway construction (3)
    4. USACE--Section 404/Rivers and Harbors Act (RHA) section 10 
permitting--dredge, fill, construction (20)
    5. Federal Highway Administration (FHWA)--Bridge repair, 
replacement (67)
    6. U.S. Coast Guard (USCG)--Bridge repair, replacement permitting 
(3)
    7. FERC--Hydropower licensing (5)
    8. FERC--Liquefied Natural Gas (LNG) facilities, pipelines 
authorization (5)
    9. Nuclear Regulatory Commission (NRC)--Nuclear power plant 
construction/operation licensing (8)
    10. NMFS--ESA research and incidental take permitting (section 10) 
(46)
    11. U.S. Fish and Wildlife Service (USFWS)--Fishery management 
grants (11)
    12. Environmental Protection Agency (EPA)--Nationwide pesticide 
authorizations (9)
    13. Federal Emergency Management Agency (FEMA)--Disaster 
assistance/preparation grants (5)
    14. Department of Energy (DOE)--Nuclear fuel management (3)
    We estimate that 205 activities will require consultation over the 
next 10 years and will require analysis of impacts to Atlantic sturgeon 
critical habitat. As discussed in more detail in our Draft Impacts 
Analysis, all the activities identified as having the potential to 
adversely affect one or more of the proposed essential features, also 
have the potential to take Atlantic sturgeon. For most, if not all, of 
the projected future activities, if the effects to critical habitat 
will be adverse and require formal consultation, those effects would 
also constitute adverse effects to the species, either directly when 
they are in the project area, or indirectly due to the effects on their 
habitat. This is due to the conservation functions that the features 
are being designated to provide. For example,

[[Page 36091]]

water quality is being identified as an essential feature to facilitate 
successful spawning, annual and inter-annual adult, larval, and 
juvenile survival, and larva, juvenile and subadult growth, 
development, and recruitment. Effects to the water quality feature that 
impede that conservation objective could injure or kill individual 
Atlantic sturgeon, for example by preventing adult reproduction, or 
rendering reproduction ineffective or resulting in reduced growth or 
mortality of larvae, juveniles or subadults. In these circumstances, 
the same project modifications would be required to address effects to 
both the species and effects to the critical habitat. Thus, projects 
that adversely affect the proposed essential features are likely to 
always also adversely affect the species and the project impacts would 
not be incremental.
    For some of the projected activities, it may be feasible to conduct 
the action when sturgeon are out of the action area. If effects to 
critical habitat are temporary such that the essential features return 
to their pre-project condition by the time the sturgeon return and need 
to use the features, there might not be any adverse effects to either 
the species or the critical habitat. In these circumstances, 
consultations would be fully incremental consultations only on critical 
habitat, and the consultations would be informal (i.e., impacts to 
critical habitat would not be permanent and would not be significant). 
This would likely only apply to actions that affect just spawning 
habitat in the upper parts of the rivers, as sturgeon of various ages 
are present year-round in the lower reaches of the rivers and the 
estuaries. The costs of fully incremental, informal consultations are 
higher than the marginal costs of adding critical habitat analyses to 
coextensive, formal consultations. Thus, to be conservative and avoid 
underestimating incremental impacts of this designation, and based on 
the activities involved, we assumed that two categories of activities 
could result in incremental, informal consultations. Those activities, 
both implemented by the USACE, are section Clean Water Act section 404/
Rivers and Harbors Act permitting and WRDA dam operations/repair.
    Administrative costs include the cost of time spent in meetings, 
preparing letters, and in some cases, developing a biological 
assessment and biological opinion, identifying and designing reasonable 
and prudent measures (RPMs), and so forth. For this impacts report, we 
estimated per-project administrative costs based on critical habitat 
economic analyses by Industrial Economics, Inc. (IEc). (2014a, 2014b). 
These impacts reports estimate administrative costs for different 
categories of consultations as follows: (1) New consultations resulting 
entirely from critical habitat designation; (2) new consultations 
considering only adverse modification (unoccupied habitat); (3) re-
initiation of consultation to address adverse modification; and, (4) 
additional consultation effort to address adverse modification in a new 
consultation. Most of the projected future consultations we project to 
result from this proposed rulemaking will be coextensive formal 
consultations on new actions that would be evaluating impacts to 
sturgeon as well as impacts to critical habitat, and the administrative 
costs for these 182 consultations would be in category 4 above. The 
remaining 23 actions are projected to involve incremental informal 
consultation due to impacts to critical habitat alone. Based on IEc 
(2014a, b), we project that each formal consultation will result in the 
following additional costs to address critical habitat impacts: $1,400 
in NMFS costs; $1,600 in action agency costs; $880 in third party 
(e.g., permittee) costs, if applicable; and $1,200 in costs to the 
action agency or third party to prepare a Biological Assessment (BA). 
Costs for the incremental informal consultations would be as follows: 
$1,900 in NMFS' costs; $2,300 in action agency costs; $1,500 in third 
party (e.g., permittee) costs, if applicable; and $1,500 in costs to 
the action agency or third party to prepare a BA. Costs of the 9 EPA 
nationwide consultations were treated differently. 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 9 consultations to each unit, and 9 to each DPS's total number of 
consultations. We spread the costs of these consultations ($5,080 each) 
evenly across all units included in this proposed rule and the 
companion proposed rule to designate critical habitat for the Gulf of 
Maine, New York Bight, and Chesapeake Bay DPSs. This resulted in a 
total cost of $1,474.84 per unit.
    In our impacts analysis, we concluded that none of the projected 
future activities are likely to require project modifications to avoid 
adverse effects to critical habitat features that would be different 
from modifications required to avoid adverse effects to sturgeon. In 
other words, we projected no incremental costs in proposed critical 
habitat units other than the administrative costs of consultations. 
While there may be serious adverse impacts to critical habitat from 
projected future projects that require project modifications to avoid 
destroying or adversely modifying critical habitat, impacts of these 
magnitudes to the essential features as defined, would also result in 
adverse effects to Atlantic sturgeon, either directly when they are in 
the project area, or indirectly as harm, resulting from impacts to 
their habitat that result in injury or death to sturgeons. The same 
project modifications would be required to avoid destroying or 
adversely modifying critical habitat and avoiding jeopardy or 
minimizing take of Atlantic sturgeon caused by impacts to its habitat.
    Based on our draft impacts analysis, we project that the costs that 
will result from the proposed designation will total $1,092,793 over 
the next 10 years. The total incremental cost resulting from the 
designation for the Carolina DPS is $503,954, and the total incremental 
cost resulting from the designation for the South Atlantic DPS is 
$588,839, over 10 years. The per-unit costs vary widely. The annual 
per-unit costs range from $147 (Unoccupied Cape Fear River unit, 
Carolina DPS) to $23,051 (Occupied Savannah River unit, South Atlantic 
DPS).

National Security Impacts

    Previous critical habitat designations have recognized that impacts 
to national security result if a designation would trigger future ESA 
Section 7 consultations because a proposed military activity ``may 
affect'' the physical or biological feature(s) essential to the listed 
species' conservation. Anticipated interference with mission-essential 
training or testing or unit readiness, through the additional 
commitment of resources to an adverse modification analysis and 
expected requirements to modify the action to prevent adverse 
modification of critical habitat, has been identified as a negative 
impact of critical habitat designations. (See, e.g., Proposed 
Designation of Critical Habitat for Southern Resident Killer Whales; 69 
FR 75608, Dec. 17, 2004, at 75633.)
    On February 14, 2014, and again in October 7, 2015, NMFS sent 
letters to DOD and the Department of Homeland Security requesting 
information on national security impacts of the proposed critical 
habitat designation, and we received responses from the Navy, Air 
Force, Army, and USCG. We discuss the information contained within the 
responses thoroughly in the

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Draft Impacts Analysis and summarize the information below.
    The Navy's first submission provided information on its facilities 
and operations. However, the Navy was not able to make a full 
assessment whether there would be any national security impacts. The 
Navy indicated that as we define our essential features and areas more 
precisely, they would be able to provide a more detailed response to 
our requests and would update their INRMPs as necessary for the 
protection of Atlantic sturgeon and its critical habitat. The Navy's 
second submission noted that Naval Submarine Base Kings Bay was 
adjacent to the South Atlantic DPS critical habitat unit in the St. 
Marys River. The Navy stated it did not own or control any land or 
waters within the St. Marys channel, but that the TRIDENT-class 
submarines used 4.9 km of the waterway transiting to and from the 
Atlantic Ocean. The Navy stated that any operational or dredging 
restrictions that would impede maintenance of the channel from the 
Intracoastal Waterway and St. Marys channel intersection, downstream, 
could pose a national security risk. The USACE is typically the lead 
action agency with us for dredging actions, and the Navy would be the 
permit applicant. We determined that dredging has the potential to 
affect critical habitat, but we also concluded that consultations for 
effects of dredging on critical habitat will be fully-coextensive with 
consultations to address impacts to sturgeon. The effects of dredging 
on essential features would also result in injury or death to 
individual sturgeon, and thus constitute take. Removal or covering of 
spawning substrate could prevent effective spawning or result in death 
of eggs or larvae that are spawned. Changing the salinity regime by 
deepening harbors and parts of rivers could result in permanent 
decreases if available foraging and developmental habitat for 
juveniles. These types of adverse effects are not likely to be 
temporary and limited to periods of sturgeon absence. Thus, adverse 
effects of dredging activities are likely to be coextensive formal 
consultations to address impacts to both the species and the essential 
features, and thus no new requirements or project modifications are 
anticipated as a result of the proposed critical habitat designation. 
Therefore, we find there will be no impact on national security as a 
consequence of the proposed designation for these actions.
    The Navy and Air Force expressed concern that designating the 
Cooper River, including the area of the river on the west side adjacent 
to the Joint Base Charleston Naval Weapons Station, could have 
significant impacts on the Navy's ability to adequately support 
mission-essential military operations, thereby impacting national 
security. The Navy and Air Force were concerned designation of critical 
habitat could affect training facilities and the maintenance of these 
facilities. Additional concerns were expressed regarding shipping and 
receiving operations from two waterfront facilities. Because no 
specifics were given on how designation of critical habitat could 
affect these activities, and because we determined there are no routes 
of effects to essential features from these activities based on the 
information provided, we concluded that designation of critical habitat 
will have no impact on these activities and thus will not result in 
impacts to national security
    The Army noted that Military Ocean Terminal-Sunny Point, North 
Carolina, was located on the Cape Fear River and Fort Stewart, Georgia, 
was located on the Ogeechee River. However, the Army was not able to 
make a full assessment whether there would be any national security 
impacts and concluded that technical assessments between the 
installations and regional levels of NMFS would identify any specific 
impacts.
    The USCG provided information on its facilities and operations. 
However, the USCG was not able to make a full assessment whether there 
would be any national security impacts. The USCG indicated that as we 
define our essential features and areas more precisely, they would be 
able to provide a more detailed response to our requests. The USCG 
consulted with us three times on authorizations for bridge repairs or 
replacements. If conducted in the future, these activities may affect 
proposed critical habitat features, but the effects would be fully 
coextensive with effects to listed sturgeon. Based on this information 
regarding potential future USCG action in proposed Atlantic sturgeon 
critical habitat, we do not expect any national security impacts as a 
consequence of the proposed critical habitat designation.
    Based on a review of our consultation database, and the information 
provided by the Navy, Air Force, Army, and USCG on their activities 
conducted within the specific areas proposed for designation as 
Atlantic sturgeon critical habitat, we determined that only one 
military action identified as a potential area of national security 
impact has routes of potential adverse effects to proposed critical 
habitat--river channel dredging. As discussed, this activity will 
require consultation due to potential impacts to listed Atlantic and 
shortnose sturgeon, and any project modifications needed to address 
impacts to these species would also address impacts to critical 
habitat. Thus, no incremental project modification impacts are expected 
due to this designation. On this basis, we conclude there will be no 
national security impacts associated with the proposed critical habitat 
for the Carolina and South Atlantic DPSs of Atlantic sturgeon.

Other Relevant Impacts

    Other relevant impacts of critical habitat designations can include 
conservation benefits to the species and to society, and impacts to 
governmental and private entities. Our Draft Impacts Analysis discusses 
conservation benefits of designating the 14 occupied and 3 unoccupied 
areas, and the benefits of conserving the Carolina and South Atlantic 
sturgeon DPSs to society, in both ecological and economic metrics.
    As discussed in the Draft Impacts Analysis and summarized here, 
Atlantic sturgeon currently provide a range of benefits to society. 
Given the positive benefits of protecting the physical features 
essential to the conservation of these DPSs, this protection will in 
turn contribute to an increase in the benefits of this species to 
society in the future as the species recovers. While we cannot quantify 
nor monetize these benefits, we believe they are not negligible and 
would be an incremental benefit of this designation. However, although 
the features are essential to the conservation of Atlantic sturgeon 
DPSs, critical habitat designation alone will not bring about the 
recovery of the species. The benefits of conserving Atlantic sturgeon 
are, and will continue to be, the result of several laws and 
regulations.
    We identified in the Draft Impacts Analysis both consumptive (e.g., 
commercial and recreational fishing) and non-consumptive (e.g., 
wildlife viewing) activities that occur in the areas proposed as 
critical habitat. Commercial and recreational fishing are components of 
the economy related to the ecosystem services provided by the resources 
within the proposed Atlantic sturgeon critical habitat areas. The 
essential features provide for abundant fish species diversity.
    Education and awareness benefits stem from the critical habitat 
designation when non-federal government entities or members of the 
general public responsible for, or interested in, Atlantic sturgeon 
conservation change their behavior or activities when they become aware 
of the designation and the importance of

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the critical habitat areas and features. Designation of critical 
habitat raises the public's awareness that there are special 
considerations that may need to be taken within the area. Similarly, 
state and local governments may be prompted to carry out programs to 
complement the critical habitat designation and benefit the Carolina 
and South Atlantic DPSs of Atlantic sturgeon. Those programs would 
likely result in additional impacts of the designation. However, it is 
impossible to quantify the beneficial effects of the awareness gained 
or the secondary impacts from state and local programs resulting from 
the critical habitat designation.

Discretionary Exclusions Under Section 4(b)(2)

    On the basis of our impacts analysis, we are not proposing to 
exercise our discretion to propose excluding any particular areas from 
the proposed critical habitat designation.
    Our conservative identification of potential incremental economic 
impacts indicates that any such impacts would be very small--$50,395 
annually for the Carolina DPS critical habitat and $58,884 annually for 
the South Atlantic DPS critical habitat. These costs will result from 
very few (about 20) Federal ESA section 7 consultations annually. These 
consultations will be spread over 4 states and over 3,300 river miles 
(4,900 river kilometers). 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. Further, the analysis indicates that 
there is no particular area within the units designated as critical 
habitat where economic impacts would be particularly high or 
concentrated. No impacts to national security are expected. Other 
relevant impacts include conservation benefits of the designation, both 
to the species and to society. Because the features that form the basis 
of the critical habitat designation are essential to the conservation 
of the Carolina and South Atlantic DPSs of Atlantic sturgeon, the 
protection of critical habitat from destruction or adverse modification 
may at minimum prevent loss of the benefits currently provided by the 
species and may contribute to an increase in the benefits of these 
species to society in the future. 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.

Proposed Critical Habitat Designation

    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 that are essential to 
the conservation of the Carolina and South Atlantic DPSs and that may 
require special management considerations or protection is aquatic 
habitat of main stem rivers flowing into a coastal estuary. Atlantic 
sturgeon typically cannot pass dams or natural features such as 
waterfalls and rapids found at the fall line of rivers. Therefore, we 
are defining each critical habitat unit by an upriver GPS position or 
landmark on the main stem river (e.g., the most downriver dam) and all 
waters of the main stem downriver of that location to river kilometer 
zero (RKM 0). Main stem river is the primary segment of a river and any 
portions thereof that depart from and rejoin the primary segment. Thus, 
channels and cuts that depart from and rejoin the main channel are 
included (e.g., Middle and Front Rivers are part of the Savannah 
River).
    In order to include areas of dynamic water depth containing 
suitable spawning habitat, we are relying on the ordinary high water 
mark (OHWM) to delineate the lateral boundaries of the specific 
critical habitat areas. Federal regulations at 33 CFR 328.3(e) define 
OHWM as ``that line on the shore established by the fluctuations of 
water and indicated by physical characteristics such as a clear, 
natural line impressed on the bank, shelving, changes in the character 
of soil, destruction of terrestrial vegetation, the presence of litter 
and debris, or other appropriate means that consider the 
characteristics of the surrounding areas.''

Occupied Critical Habitat Unit Descriptions

    Carolina Unit 1, Roanoke Unit. Roanoke River in Bertie, Halifax, 
Martin, Northampton, and Washington Counties in North Carolina. 
Carolina Unit 1 includes the Roanoke River main stem from the Roanoke 
Rapids Dam downstream to RKM 0.
    Carolina Unit 2, Tar-Pamlico Unit. Tar-Pamlico River in Beaufort, 
Edgecombe, Hyde, Nash, Pamlico, and Pitt Counties in North Carolina. 
Carolina Unit 2 includes the Tar-Pamlico River main stem from the Rocky 
Mount Millpond Dam downstream to RKM 0.
    Carolina Unit 3, Neuse Unit. Neuse River in Carteret, Craven, 
Duplin, Johnston, Lenoir, Pamlico, Pitt, Wake, and Wayne Counties in 
North Carolina.
    Carolina Unit 3 includes the Neuse River main stem from the 
Milburnie Dam downstream to RKM 0. The Neuse River, one of two major 
tributaries to Pamlico Sound, is dammed. It is likely that Atlantic 
sturgeon historically utilized habitat in the Neuse River up to the 
falls at RKM 378 where a dam (Falls Dam) is now located, although this 
site is above the fall line (ASSRT, 2007). Spawning migration may be 
impeded to historic habitat above the Milburnie Dam (RKM 349).
    Carolina Unit 4, Cape Fear Unit. Cape Fear River in Bladen, 
Brunswick, Columbus, Cumberland, New Hanover, and Pender Counties in 
North Carolina and the Northeast Cape Fear River in Duplin, New 
Hanover, Pender, and Wayne Counties in North Carolina. Carolina Unit 4 
includes the Cape Fear River main stem from Lock and Dam #2 downstream 
to RKM 0 and the Northeast Cape Fear River from the upstream side of 
Rones Chapel Road Bridge downstream to the confluence with the Cape 
Fear River.
    Carolina Unit 5, Pee Dee Unit. Pee Dee River in Anson and Richmond 
Counties in North Carolina and Chesterfield, Darlington, Dillon, 
Florence, Georgetown, Horry, Marion, Marlboro, and Williamsburg 
Counties in South Carolina; Waccamaw River in Georgetown County in 
South Carolina; and Bull Creek in Georgetown County in South Carolina. 
Carolina Unit 5 includes the Pee Dee River main stem from Blewett Falls 
Dam downstream to RKM 0, the Waccamaw River from Bull Creek downstream 
to RKM 0, and Bull Creek from the Pee Dee River to the confluence with 
the Waccamaw River.
    Carolina Unit 6. Black River Unit. Black River in Clarendon, 
Georgetown, Lee, Sumter, and Williamsburg Counties in South Carolina. 
Carolina Unit 6 includes the Black River main stem from Interstate 
Highway 20 downstream to RKM 0.
    Carolina Unit 7, Santee-Cooper Unit. Santee River in Berkeley, 
Georgetown, and Williamsburg Counties in South Carolina; North Santee 
River in Georgetown County in South Carolina; South Santee River in 
Charleston County in South Carolina; and the

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Cooper River in Berkeley and Charleston Counties in South Carolina. 
Carolina Unit 7 includes the Santee River main stem from the Wilson and 
St. Stephen Dams downstream to the fork of the North Santee River and 
South Santee River distributaries, the Rediversion Canal from the St. 
Stephen Powerhouse downstream to the confluence with the Santee River, 
the North Santee River from the fork of the Santee River and South 
Santee River downstream to RKM 0, the South Santee River from the fork 
of the Santee River and North Santee River downstream to RKM 0, the 
Tailrace Canal from Pinopolis Dam downstream to the West Branch Cooper 
River, the West Branch Cooper River from the Tailrace Canal downstream 
to the confluence with the East Branch Cooper River, and the Cooper 
River from confluence of the West Branch Cooper River and East Branch 
Cooper River tributaries downstream to RKM 0.
    South Atlantic Unit 1, Edisto Unit. The North Fork Edisto in 
Lexington, and Orangeburg Counties in South Carolina; the South Fork 
Edisto in Aiken, Bamberg, Barnwell, Edgefield, and Orangeburg Counties 
in South Carolina; the Edisto River in Bamberg, Charleston, Colleton, 
Dorchester, and Orangeburg Counties in South Carolina; the North Edisto 
in Charleston and Colleton Counties in South Carolina; and the South 
Edisto in Charleston and Colleton Counties in South Carolina. South 
Atlantic Unit 1 includes the North Fork Edisto River from Cones Pond 
downstream to the confluence with the South Fork Edisto River, the 
South Fork Edisto River from Highway 121 downstream to the confluence 
with the North Fork Edisto River, the Edisto River main stem from the 
confluence of the North Fork Edisto River and South Fork Edisto River 
tributaries downstream to the fork at the North Edisto River and South 
Edisto River distributaries, the North Edisto River from the Edisto 
River downstream to RKM 0, and the South Edisto River from the Edisto 
River downstream to RKM 0.
    South Atlantic Unit 2, Combahee-Salkehatchie Unit. Combahee-
Salkehatchie River in Allendale, Bamberg, Barnwell, Beaufort, Colleton, 
and Hampton Counties in South Carolina. South Atlantic Unit 2 includes 
the main stem Combahee--Salkehatchie River from the confluence of Buck 
Creek and Rosemary Creek with the Salkehatchie River downstream to the 
Combahee River, the Combahee River from the Salkehatchie River 
downstream to RKM 0.
    South Atlantic Unit 3, Savannah Unit. Savannah River in Aiken, 
Allendale, Barnwell, Edgefield, Hampton, Jasper and McCormick Counties 
in South Carolina and Burke, Chatham, Columbia, Effingham, Richmond, 
and Screven Counties in Georgia. South Atlantic Unit 3 includes the 
main stem Savannah River from the New Savannah Bluff Lock and Dam 
downstream to RKM 0.
    South Atlantic Unit 4, Ogeechee Unit. Ogeechee River in Bryan, 
Bulloch, Burke, Chatham, Effingham, Emanuel, Glascock, Jefferson, 
Jenkins, Screven, and Washington Counties in Georgia. South Atlantic 
Unit 4 includes the main stem Ogeechee River from the confluence of the 
North Fork and South Fork Ogeechee Rivers downstream to RKM 0.
    South Atlantic Unit 5, Altamaha Unit. Altamaha River in Appling, 
Jeff Davis, Long, McIntosh, Montgomery, Tattnall, Toombs, and Wheeler 
Counties in Georgia; the Oconee River in Baldwin, Hancock, Johnson, 
Laurens, Montgomery, Washington, Wheeler, and Wilkinson Counties in 
Georgia; and the Ocmulgee River in Ben Hill, Bibb, Bleckley, Dodge, 
Houston, Jasper, Jeff Davis, Jones, Plaski, Telfair, Twiggs, Wheeler, 
and Wilcox Counties in Georgia. South Atlantic Unit 5 includes the main 
stem Ocmulgee River from Juliette Dam downstream to the confluence with 
the Oconee River, the Oconee River from Sinclair Dam downstream to the 
confluence with the Ocmulgee, and the Altamaha River from the 
confluence of the Ocmulgee and Oconee downstream to RKM 0.
    South Atlantic Unit 6, Satilla Unit. Satilla River in Atkinson, 
Brantley, Camden, Charlton, Coffee, Glynn, Irwin, Pierce, Ware, and 
Wayne Counties in Georgia. South Atlantic Unit 6 includes the main stem 
Satilla River from the confluence of Satilla Creek and Wiggins Creek 
downstream to RKM 0.
    South Atlantic Unit 7, St. Marys Unit. St. Marys River in Camden 
and Charlton Counties in Georgia and Baker and Nassau Counties in 
Florida. South Atlantic Unit 7 includes the main stem St. Marys River 
from the confluence of Middle Prong St. Marys and the St. Marys Rivers 
downstream to RKM 0.

Unoccupied Critical Habitat Unit Descriptions

    Carolina Unoccupied Unit 1. Cape Fear River in Bladen County in 
North Carolina. Carolina Unoccupied Unit 1 includes the main stem Cape 
Fear River from Huske Lock and Dam (Lock and Dam #3) downstream to Lock 
and Dam #2.
    Carolina Unoccupied Unit 2. Wateree River in Kershaw, Richland, and 
Sumter Counties in South Carolina; Broad River in Lexington and 
Richland Counties in South Carolina; Congaree River in Calhoun and 
Richland Counties in South Carolina; Santee River in Calhoun and Sumter 
Counties in South Carolina; Lake Marion in Berkeley, Calhoun, 
Clarendon, Orangeburg, and Sumter Counties in South Carolina; Diversion 
Canal in Orangeburg County in South Carolina; and, Lake Moultrie in 
Berkeley and Orangeburg Counties in South Carolina. Carolina Unoccupied 
Unit 2 includes the Wateree River from the Wateree Dam downstream to 
the confluence with the Congaree River, the Broad River from the Parr 
Shoals Dam downstream to the confluence with the Saluda River, the 
Congaree River from the confluence of the Saluda and Broad Rivers 
downstream to the Santee River, the Santee River from the confluence of 
the Congaree and Wateree Rivers downstream to Lake Marion, Lake Marion 
from the Santee River downstream to the Diversion Canal, the Diversion 
Canal from Lake Marion downstream to Lake Moultrie, Lake Moultrie from 
the Diversion Canal downstream to the Pinopolis Dam and the Rediversion 
Canal, the Rediversion Canal from Lake Moultrie downstream to the St. 
Stephen Powerhouse.
    South Atlantic Unoccupied Unit 1. Savannah River in Aiken and 
Edgefield Counties in South Carolina and Columbia and Richmond Counties 
in Georgia. South Atlantic Unoccupied Unit 1 includes the Savannah 
River from the Augusta Diversion Dam downstream to the New Savannah 
Bluff Lock and Dam.

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Effects of Critical Habitat Designations

    Section 7(a)(2) of the ESA requires Federal agencies, including 
NMFS, to insure that any action authorized, funded, or carried out by 
the agency does not jeopardize the continued existence of any 
threatened or endangered species or destroy or adversely modify 
designated critical habitat. Federal agencies are also required to 
confer with NMFS regarding any actions likely to jeopardize a species 
proposed for listing under the ESA, or likely to destroy or adversely 
modify proposed critical habitat, pursuant to Section 7(a)(4). A 
conference involves informal discussions in which NMFS may recommend 
conservation measures to minimize or avoid adverse effects. The 
discussions and conservation recommendations are to be documented in a 
conference report provided to the Federal agency. If requested by the 
Federal agency, a formal conference report may be issued, including a 
biological opinion prepared according to 50 CFR 402.14. A formal 
conference report may be adopted as the biological opinion when the 
species is listed or critical habitat designated, if no significant new 
information or changes to the action alter the content of the opinion. 
When a species is listed or critical habitat is designated, Federal 
agencies must consult with NMFS on any agency actions to be conducted 
in an area where the species is present and that may affect the species 
or its critical habitat. During the consultation, NMFS would evaluate 
the agency action to determine whether the action may adversely affect 
listed species or critical habitat and issue its findings in a 
biological opinion. If NMFS concludes in the biological opinion that 
the agency action would likely result in the destruction or adverse 
modification of critical habitat, NMFS would also recommend any 
reasonable and prudent alternatives to the action. Reasonable and 
prudent alternatives are defined in 50 CFR 402.02 as alternative 
actions identified during formal consultation that can be implemented 
in a manner consistent with the intended purpose of the action, that 
are consistent with the scope of the Federal agency's legal authority 
and jurisdiction, that are economically and technologically feasible, 
and that would avoid the destruction or adverse modification of 
critical habitat. Regulations at 50 CFR 402.16 require federal agencies 
that have retained discretionary involvement or control over an action, 
or where such discretionary involvement or control is authorized by 
law, to reinitiate consultation on previously reviewed actions in 
instances where: (1) Critical habitat is subsequently designated; or 
(2) new information or changes to the action may result in effects to 
critical habitat not previously considered in the biological opinion. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with NMFS on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat. Activities subject to the ESA Section 7 consultation process 
include activities on Federal lands and activities on private or state 
lands requiring a permit from a Federal agency or some other Federal 
action, including funding. In the marine and aquatic environments, 
activities subject to the ESA Section 7 consultation process include 
activities in Federal waters and in state waters that: (1) Have the 
potential to affect listed species or critical habitat; and (2) are 
carried out by a Federal agency, need a permit or license from a 
Federal agency, or receive funding from a Federal agency. ESA Section 7 
consultation would not be required for Federal actions that do not 
affect listed species or critical habitat and for actions that are not 
Federally funded, authorized, or carried out.

Activities That May be Affected

    Section 4(b)(8) of the ESA requires that we describe briefly and 
evaluate in any proposed or final regulation to designate critical 
habitat, those activities that may adversely modify such habitat or 
that may be affected by such designation. As described in our Draft 
Impacts Analysis, 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 because they may 
affect one or more of the essential features of critical habitat. Such 
activities include in-water construction for a variety of federal 
actions, dredging for navigation, harbor expansion or sand and gravel 
mining, flood control projects, bridge repair and replacement, 
hydropower licensing, natural gas facility and pipeline construction, 
ESA research and incidental take permits or fishery research grants, 
and Clean Water Act TMDL program management. Private entities may also 
be affected by these proposed critical habitat designations if they are 
a proponent of a project that requires a Federal permit, Federal 
funding is received, or the entity is involved in or receives benefits 
from a Federal project. Future activities will need to be evaluated 
with respect to their potential to destroy or adversely modify critical 
habitat. For example, activities may adversely modify the substrate 
essential feature by removing or altering the substrate. The open 
passage feature may be adversely modified by the placement of 
structures such as dams and tidal turbines, research nets, or altering 
the water depth so that fish cannot swim. The salinity feature may be 
adversely modified by activities that impact fresh water input such as 
operation of water control structures and water withdrawals, and 
impacts to water depth such as dredging. The water quality feature may 
be adversely modified by land development as well as commercial and 
recreational activities on rivers that contribute to nutrient loading 
which could result in decreased dissolved oxygen levels and increased 
water temperature, and increased sediment deposition that 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. 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 us (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 Southeast Region Web 
site

[[Page 36097]]

at http://sero.nmfs.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 (Section 515 of Public Law 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 information in the Draft Impacts Analysis Report supporting 
this proposed critical habitat rule is considered influential 
scientific information and subject to peer review. To satisfy our 
requirements under the OMB Bulletin, we obtained independent peer 
review of the information used to draft this document, and incorporated 
the peer review comments into this draft 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. Comments received from peer reviewers are 
available on our Web site at http://sero.nmfs.noaa.gov/protected_resources/sturgeon/index.html.

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. 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 because it may create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency. 
A draft economic impacts report has been prepared to support an impacts 
analysis under section 4(b)(2) of the ESA.

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 North Carolina, 
South Carolina, Georgia, and Florida. 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 cubic 
feet 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 to those areas 
where critical habitat is proposed and is included as Appendix A of the 
Draft Impacts Analysis Report and is available upon request (see 
ADDRESSES section). The IRFA is summarized below, as required by 
section 603 of the RFA. The IRFA describes the economic impact this 
proposed rule, if adopted, would have on small entities.
    As discussed previously and in our IRFA, the designation of 
critical habitat is required under the ESA, and in this particular 
case, is also required

[[Page 36098]]

pursuant to a court-ordered settlement agreement. The purpose of the 
critical habitat designation, as required by the ESA, is to designate, 
to the maximum extent prudent and determinable, the specific areas that 
contain the physical or biological features essential to the 
conservation of the species and that may require special management 
considerations or protections. The proposed critical habitat rule does 
not directly apply to any particular entity, small or large. The rule 
would operate in conjunction with ESA Section 7(a)(2), which requires 
that federal agencies insure, in consultation with NMFS, that any 
action they authorize, fund, or carry out is not likely to jeopardize 
the continued existence of listed species or destroy or adversely 
modify critical habitat. Consultations may result in economic impacts 
to federal agencies and proponents of proposed actions (e.g., 
permittees, applicants, grantees). Those economic impacts may be in the 
form of administrative costs of participating in a Section 7 
consultation and, if the consultation results in required measures to 
protect critical habitat, project modification costs.
    We evaluated whether predicted future federal actions would affect 
Atlantic sturgeon, the essential features of the proposed critical 
habitat, or both, or whether there were other identifiable baseline 
impacts that might be coextensive with impacts to habitat features, 
such as impacts to shortnose sturgeon. If a proposed action affects 
only listed sturgeon or affects both listed sturgeon and essential 
features, the administrative and project modification costs are not 
necessarily attributable solely to critical habitat designation. In 
these circumstances, the added administrative costs associated with 
addressing critical habitat in a consultation were considered 
incremental impacts of the proposed designation. There could also be 
incremental project modification costs for consultations with 
coextensive impacts, if an action is considered likely to require 
unique project modifications to specifically address impacts to the 
features. If a proposed action would only affect the essential 
features, the administrative and project modification costs would be 
attributable to the critical habitat designation and thus treated as 
incremental impacts of the designation.
    For most, if not all, of the federal activities predicted to occur 
in the next 10 years, if the effects to critical habitat will be 
adverse and require formal consultation, those effects would also 
constitute adverse effects to Atlantic sturgeon or shortnose sturgeon, 
either directly when they are in the project area, or indirectly due to 
the effects on their habitat. Thus, as discussed previously, projects 
that adversely affect the proposed essential features are likely to 
always also adversely affect the species and the project impacts would 
not be incremental. Therefore, the only costs of this class of actions 
that are attributable to this rule are the administrative costs of 
adding critical habitat analyses to a consultation that would occur 
anyway, due to impacts to sturgeon species.
    For some of the predicted future federal activities, it may be 
feasible to conduct the action when sturgeon are out of the action 
area. If effects to critical habitat are temporary such that the 
essential features return to their pre-project condition by the time 
the sturgeon return and need to use the features, there might not be 
any adverse effects to either the species or the critical habitat. In 
these circumstances, consultations would be fully incremental 
consultations only on critical habitat, and the consultations would be 
informal. This would likely only apply to actions that affect just 
spawning habitat in the upper parts of the rivers, as sturgeon of 
various ages are present year-round in the lower reaches of the rivers 
and the estuaries. Because the costs of fully incremental informal 
consultations are higher than the marginal costs of adding critical 
habitat analyses to coextensive formal consultations, we conservatively 
assumed future actions will be incremental informal consultations, 
where applicable. Thus, the costs of these future activities that are 
attributable to the rule would consist of the full costs of informal 
consultation, to NMFS, to the action agency, and to any third party 
proponent of the action (e.g., applicant, permittee).
    Ten different federal entities implemented or approved 14 different 
categories of activities in the areas covered by the proposed critical 
habitat units that required consultations in the past. All categories 
of activities implemented by these federal entities were identified as 
having the potential to affect the essential features. The total number 
of projected consultations over 10 years is indicated in parentheses 
below.

1. USACE--Navigation maintenance dredging, harbor expansion (14)
2. USACE--WRDA flood control, ecosystem restoration studies (6)
3. USACE--WRDA dam operations, repair, fishway construction (3)
4. USACE--Section 404/RHA section 10 permitting--dredge, fill, 
construction (20)
5. FHWA--Bridge repair, replacement (67)
6. USCG--Bridge repair, replacement permitting (3)
7. FERC--Hydropower licensing (5)
8. FERC--LNG facilities, pipelines authorization (5)
9. NRC--Nuclear power plant construction/operation licensing (8)
10. NMFS--ESA research or incidental take permitting (section 10) (46)
11. USFWS--Fishery management grants (11)
12. EPA--Nationwide pesticide authorizations (9)
13. FEMA--Disaster assistance/preparation grants (5)
14. DOE--Nuclear fuel management (3)

    We predict that a total of 205 federal actions will require 
consultation due to impacts to critical habitat over the next 10 years; 
of these, we project that 179 actions could involve third parties that 
might be small entities. One hundred fifty-six projected future federal 
actions that could involve third parties will consist of coextensive 
formal consultations considering impacts to both sturgeon and critical 
habitat. The administrative costs of consultation to third parties per 
consultation from these actions will either be $880 or $2,080, 
depending upon whether they bear the costs of completing a biological 
assessment. The 23 projected future actions that would be fully 
incremental and that could involve third parties would result in either 
$1,500 or $3,000 in costs to such third parties per consultation, 
depending upon whether they bear the costs of completing a biological 
assessment. Given the EPA consultations will be national in scope and 
involve all of NMFS's listed species and designated critical habitats, 
costs to third parties involved in the these consultations that are 
attributable to this rulemaking are conservatively estimated to be 
$25,072 for all units over 10 years.
    Businesses in North American Industry Classification System (NAICS) 
Subsector 325320, Pesticide and Other Agricultural Chemical 
Manufacturing, could be involved in the 5 nationwide EPA pesticide 
authorization consultations. A small business in this Subsector is 
defined by the SBA as having 1,000 employees (https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf).
    Businesses in North American Industry Classification System (NAICS) 
Sector 22 (Utilities) could be involved in 18 actions projected to 
occur in federal action categories 7-9. For hydropower power generation 
and natural gas distribution enterprises, a small business is defined 
by the SBA as

[[Page 36099]]

one having a total of 500 employees. For nuclear power generation, a 
small business is defined by the SBA as one having a total of 750 
employees. Businesses in NAICS Sector 54 could be involved as 
contractors assisting with the ESA consultation in any of the 179 
projected future federal actions that could involve third parties. 
Relevant subsectors could include 541370, Surveying and Mapping, 
541620, Environmental Consulting Services, or 541690, Other Scientific 
and Technical Consulting Services. A small business in any of these 
subsectors is defined by the SBA as one having average annual receipts 
of $15 million.
    Businesses in NAICS Sector 23, Construction, could be involved in a 
number of categories of projected future actions, where they could 
incur administrative costs of construction. Businesses in subsector 
237120, Oil and Gas Pipeline and Related Structures Construction, could 
be involved in the 3 FERC LNG pipeline consultations. A small business 
in this subsector has average annual receipts of $36.5 million. 
Businesses in subsector 237310, Highway, Street, and Bridge 
Construction, could be involved in the 70 FHWA and USCG bridge repair, 
replacement consultations. A small business in this subsector has 
average annual receipts of $36.5 million.
    Businesses in subsector 238, Other Specialty Trade Contractors, 
could be involved as construction contractors in the 20 future USACE 
section 404/RHA permitting actions and the 5 FEMA disaster assistance 
actions. Small businesses in this subsector have average annual 
receipts of $15 million.
    Cities could be involved in many of the 70 FHWA and USCG bridge 
repair, replacement projects, and some proportion of the 20 USACE 
section 404/RHA permitting actions. The SBA defines a small 
governmental jurisdiction as cities, counties, towns, townships, 
villages, school districts, or special districts with a population of 
less than 50,000.
    Our consultation database does not track the identity of past third 
parties involved in consultations, or whether the third parties were 
small entities; therefore we have no basis to determine the percentage 
of the 179 third parties that may potentially be involved in future 
consultations due to impacts to proposed critical habitat that may be 
small businesses, small nonprofits, or small government jurisdictions.
    There is no indication in the data evaluated in the Draft Impacts 
Analysis Report, which serves as the basis for this IRFA, that the 
designation would place small entities at a competitive disadvantage 
compared to large entities. Incremental economic impacts due to the 
designation proposed for the Carolina and South Atlantic DPSs will be 
minimal overall. These costs will result from participation in the 
Section 7 consultation process, and will be spread over 14 river 
systems totaling over 3,300 river miles in 4 states. Federal agencies 
will bear the majority of the costs (59% to 83%), which will be limited 
to administrative costs of consultation for all parties involved. There 
are no apparent concentrations of costs. Assuming a third party would 
be involved and incur costs for each of the 179 projects in all of the 
categories of federal activity that involved third parties in the past, 
the costs to third parties that could be involved in the projected 
future consultations, other than the EPA consultations, would be 
between $880 and $2,080 for each action for coextensive formal 
consultations, and between $1,500 and $3,000 for each fully incremental 
informal consultation. The total costs over the next 10 years to all 
third parties for these 2 classes of actions would be between $30,000 
and $60,000 for the incremental informal consultations and between 
$136,400 and $322,400 for the coextensive consultations. The total 
costs over the next 10 years to third parties involved in the EPA 
consultations are conservatively estimated to be $25,072 across all 
units.
    Even though we cannot determine relative numbers of small and large 
entities that may be affected by the designation of critical habitat, 
there is no indication that affected project applicants would be 
limited to, nor disproportionately comprised of, small entities. It is 
unclear whether small entities would be placed at a competitive 
disadvantage compared to large entities. However, as described in the 
Draft Impacts Analysis Report, consultations and project modifications 
will be required based on the type of permitted action and its 
associated impacts on the essential critical habitat features.
    It is unlikely that the proposed rule will significantly reduce 
profits or revenue for small businesses, if they are involved in future 
consultations required by this rulemaking, given costs will be limited 
to administrative costs of participating in the consultation process 
and the maximum cost of a single consultation to a third party is 
projected to be $3,000.
    We encourage all small businesses, small nonprofits and small 
governmental jurisdictions that may be affected by this rule to provide 
comment on the potential economic impacts of the proposed designation, 
to improve the above analysis.
    There are no record-keeping or reporting requirements associated 
with the proposed rule. Similarly, there are no other compliance 
requirements in the rule. There are no professional skills necessary 
for preparation of any report or record, although consultants are 
frequently involved on behalf of project proponents, for example in 
preparing biological assessments of the impacts of a proposed action on 
listed species and critical habitat. Federal laws and regulations that 
directly and indirectly protect the Carolina and South Atlantic DPSs of 
Atlantic sturgeon are listed and discussed in the Draft Impacts 
Analysis Report. No federal laws or regulations duplicate or conflict 
with the proposed rule. Existing federal laws and regulations overlap 
with the proposed rule only to the extent that they provide protection 
to marine natural resources. However, no existing laws or regulations 
specifically address negative impacts to, or require the avoidance of 
the destruction or adverse modification of, the essential features of 
critical habitat for the Carolina and South Atlantic DPSs of Atlantic 
sturgeon.
    We considered a no action (status quo) alternative to the proposed 
designation under which NMFS would not propose critical habitat for the 
Carolina and South Atlantic DPSs of Atlantic sturgeon. Under this 
alternative, conservation and recovery of the listed species would 
depend upon the protection provided under the ``jeopardy'' provisions 
of Section 7 of the ESA. Compared to the status quo, there would be no 
increase in the number of ESA consultations or project modifications in 
the future that would not otherwise be required due to the listing of 
the Carolina and South Atlantic DPSs of Atlantic sturgeon. However, we 
have determined that the physical features forming the basis for our 
proposed critical habitat designation are essential to the conservation 
of the Carolina and South Atlantic DPSs of Atlantic sturgeon. Thus, the 
lack of protection of the essential features from adverse modification 
and/or destruction could result in decline in abundance of the Carolina 
and South Atlantic DPSs of Atlantic sturgeon, and loss of associated 
economic and other values this species provides to society. Thus, the 
no action alternative is not necessarily a ``no cost'' alternative for 
small entities.
    We also considered an alternative of including all large coastal 
rivers from the North Carolina/Virginia border southward to the St 
Johns River, Florida, in the designation. Several large coastal rivers 
within the geographic area

[[Page 36100]]

occupied by the Carolina and South Atlantic DPSs of Atlantic sturgeon 
do not appear to support spawning and juvenile recruitment or to 
contain suitable habitat features to support spawning. These rivers are 
the Chowan and New Rivers in North Carolina; the Waccamaw (above its 
confluence with Bull Creek which links it to the Pee Dee River), 
Sampit, Ashley, Ashepoo, and Broad-Coosawhatchie Rivers in South 
Carolina; and the St. Johns River, Florida. We have no information, 
current or historic, of Atlantic sturgeon utilizing the Chowan and New 
Rivers in North Carolina. Recent telemetry work by Post et al. (2014) 
indicates that Atlantic sturgeon do not utilize the Sampit, Ashley, 
Ashepoo, and Broad-Coosawhatchie Rivers in South Carolina. These rivers 
are short, coastal plains rivers that most likely do not contain 
suitable habitat for Atlantic sturgeon. Post et al. (2014) also found 
Atlantic sturgeon only utilized the portion of the Waccamaw River 
downstream of Bull Creek. Due to man-made structures and alterations, 
spawning areas in the St. Johns are not accessible and therefore do not 
support a reproducing population. For these reasons, we are not 
designating these coastal rivers, or portions of the rivers, as 
critical habitat.

Coastal Zone Management Act

    We have determined that this action will have no reasonably 
foreseeable effects on the enforceable policies of approved Coastal 
Zone Management Programs of North Carolina, South Carolina, Georgia and 
Florida. Upon publication of this proposed rule, these determinations 
will be submitted for review by the responsible state agencies under 
section 307 of the Coastal Zone Management Act.

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.
    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 the Carolina and South Atlantic DPSs do not have 
tribal implications.

References Cited

    A complete list of all references cited in this rulemaking can be 
found on our Web site at http://sero.nmfs.noaa.gov/protected_resources/sturgeon/index.html and is available upon request from the NMFS 
Southeast Region Fisheries Office in St. Petersburg, Florida (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.  226.226 to read as follows:


Sec.  226.226  Critical habitat for the Carolina and South Atlantic 
distinct population Segments of Atlantic sturgeon.

    Critical habitat is designated for the Carolina and South Atlantic 
DPSs of Atlantic sturgeon as described in paragraphs (a) through (b) of 
this section. The textual descriptions in paragraphs (c) through (d) 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 Carolina and South Atlantic Distinct 
Population Segments are those habitat components that support 
successful reproduction and recruitment. These are:
    (1) Suitable 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 and refuge, 
growth, and development of early life stages;
    (2) Transitional salinity zones inclusive of waters with a gradual 
downstream 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 (at least 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 quality conditions, especially in the bottom meter of the 
water column, with temperature and oxygen values that support:
    (i) Spawning;
    (ii) Annual and inter-annual adult, subadult, larval, and juvenile 
survival; and
    (iii) Larval, juvenile, and subadult growth, development, and 
recruitment.

[[Page 36101]]

Appropriate temperature and oxygen values will vary interdependently, 
and depending on salinity in a particular habitat. For example, 6 mg/L 
dissolved oxygen (D.O.) for juvenile rearing habitat is considered 
optimal, whereas D.O. less than 5.0 mg/L for longer than 30 days is 
considered suboptimal when water temperature is greater than 25[deg]C. 
In temperatures greater than 26[deg]C, D.O. greater than 4.3 mg/L is 
needed to protect survival and growth. Temperatures of 13[deg] C to 
26[deg] C for spawning habitat are considered optimal
    (b) Critical habitat is designated for the following DPSs in the 
following states and counties:

----------------------------------------------------------------------------------------------------------------
                     DPS                                                State--Counties
----------------------------------------------------------------------------------------------------------------
Carolina.....................................  NC--Anson, Bertie, Beaufort, Bladen, Brunswick, Carteret, Craven,
                                                Columbus, Duplin, Edgecombe, Halifax, Hyde, Johnston, Lenoir,
                                                Martin, Nash, New Hanover, Northampton, Pamlico, Pender, Pitt,
                                                Richmond, Wake, Washington, and Wayne
                                               SC--Berkeley, Calhoun, Charleston, Chesterfield, Clarendon,
                                                Darlington, Dillon, Fairfield, Florence, Kershaw, Georgetown,
                                                Horry, Lee, Lexington, Marion, Marlboro, Newberry, Orangeburg,
                                                Richland, Sumter, and Williamsburg
South Atlantic...............................  SC--Aiken, Allendale, Bamberg, Barnwell, Beaufort, Charleston,
                                                Colleton, Dorchester, Edgefield, Hampton, Jasper, Lexington, and
                                                Orangeburg
                                               GA--Appling, Atkinson, Baldwin, Ben Hill, Bibb, Bleckley,
                                                Brantley, Bryan, Bulloch, Burke, Camden, Charlton, Chatham,
                                                Coffee, Columbia, Dodge, Effingham, Emanuel, Glascock, Glynn,
                                                Hancock, Houston, Irwin, Jasper, Jeff Davis, Jefferson, Jenkins,
                                                Johnson, Jones, Laurens, Long, McIntosh, Montgomery, Pierce,
                                                Plaski, Richmond, Screven, Tattnall, Telfair, Toombs, Twiggs,
                                                Ware, Washington, Wayne, Wheeler, and Wilkinson
                                               FL--Baker and Nassau
----------------------------------------------------------------------------------------------------------------

    (c) Critical Habitat Boundaries of the Carolina DPS. The lateral 
extent for all critical habitat units for the Carolina DPS of Atlantic 
sturgeon is the ordinary high water mark on each bank of the river and 
shorelines. Critical habitat for the Carolina DPS of Atlantic sturgeon 
is:
    (1) Carolina Unit 1 includes the Roanoke River main stem from the 
Roanoke Rapids Dam downstream to RKM 0;
    (2) Carolina Unit 2 includes the Tar-Pamlico River main stem from 
the Rocky Mount Millpond Dam downstream to RKM 0;
    (3) Carolina Unit 3 includes the Neuse River main stem from the 
Milburnie Dam downstream to RKM 0;
    (4) Carolina Unit 4 includes the Cape Fear River main stem from 
Lock and Dam #2 downstream to RKM 0 and the Northeast Cape Fear River 
from the upstream side of Rones Chapel Road Bridge downstream to the 
confluence with the Cape Fear River;
    (5) Carolina Unit 5 includes the Pee Dee River main stem from 
Blewett Falls Dam downstream to RKM 0, the Waccamaw River from Bull 
Creek downstream to RKM 0, and Bull Creek from the Pee Dee River to the 
confluence with the Waccamaw River;
    (6) Carolina Unit 6 includes the Black River main stem from 
Interstate Highway 20 downstream to RKM 0;
    (7) Carolina Unit 7 includes the Santee River main stem from the 
Wilson Dam downstream to the fork of the North Santee River and South 
Santee River distributaries, the Rediversion Canal from the St. Stephen 
Powerhouse downstream to the confluence with the Santee River, the 
North Santee River from the fork of the Santee River and South Santee 
River downstream to RKM 0, the South Santee River from the fork of the 
Santee River and North Santee River downstream to RKM 0, the Tailrace 
Canal from Pinopolis Dam downstream to the West Branch Cooper River, 
the West Branch Cooper River from the Tailrace Canal downstream to the 
confluence with the East Branch Cooper River, and the Cooper River from 
confluence of the West Branch Cooper River and East Branch Cooper River 
tributaries downstream to RKM 0;
    (8) Carolina Unoccupied Unit 1 includes the Cape Fear River from 
Huske Lock and Dam (Lock and Dam #3) downstream to Lock and Dam #2; and
    (9) Carolina Unoccupied Unit 2 includes the Wateree River from the 
Wateree Dam downstream to the confluence with the Congaree River, the 
Broad River from the Parr Shoals Dam downstream to the confluence with 
the Saluda River, the Congaree River from the confluence of the Saluda 
River and Broad River downstream to the Santee River, the Santee River 
from the confluence of the Congaree River and Wateree River downstream 
to Lake Marion, Lake Marion from the Santee River downstream to the 
Diversion Canal, the Diversion Canal from Lake Marion downstream to 
Lake Moultrie, Lake Moultrie from the Diversion Canal downstream to the 
Pinopolis Dam and the Rediversion Canal, the Rediversion Canal from 
Lake Moultrie downstream to the St. Stephen Powerhouse.
    (d) Areas Not Included in Critical Habitat. Pursuant to ESA section 
3(5)(A)(i), all areas containing existing (already constructed) 
federally authorized or permitted man-made structures such as aids-to-
navigation (ATONs), artificial reefs, boat ramps, docks, pilings, 
maintained channels, or marinas.
    (e) Maps of The Carolina DPS follow:
BILLING CODE 35101-22-P

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    (d) Critical Habitat Boundaries of the South Atlantic DPS. The 
lateral extent for all critical habitat units for the South Atlantic 
DPS of Atlantic sturgeon is the ordinary high water mark on each bank 
of the river and shorelines. Critical

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habitat for the South Atlantic DPS of Atlantic sturgeon is:
    (1) South Atlantic Unit 1 includes the North Fork Edisto River from 
Cones Pond downstream to the confluence with the South Fork Edisto 
River, the South Fork Edisto River from Highway 121 downstream to the 
confluence with the North Fork Edisto River, the Edisto River main stem 
from the confluence of the North Fork Edisto River and South Fork 
Edisto River tributaries downstream to the fork at the North Edisto 
River and South Edisto River distributaries, the North Edisto River 
from the Edisto River downstream to RKM 0, and the South Edisto River 
from the Edisto River downstream to RKM 0;
    (2) South Atlantic Unit 2 includes the main stem Combahee--
Salkehatchie River from the confluence of Buck and Rosemary Creeks with 
the Salkehatchie River downstream to the Combahee River, the Combahee 
River from the Salkehatchie River downstream to RKM 0;
    (3) South Atlantic Unit 3 includes the main stem Savannah River 
from the New Savannah Bluff Lock and Dam downstream to RKM 0;
    (4) South Atlantic Unit 4 includes the main stem Ogeechee River 
from the confluence of the North Fork Ogeechee River and South Fork 
Ogeechee River downstream to RKM 0;
    (5) South Atlantic Unit 5 includes the main stem Oconee River from 
Sinclair Dam downstream to the confluence with the Ocmulgee River, the 
main stem Ocmulgee River from Juliette Dam downstream to the confluence 
with the Oconee River, and the main stem Altamaha River from the 
confluence of the Oconee River and Ocmulgee River downstream to RKM 0;
    (6) South Atlantic Unit 6 includes the main stem Satilla River from 
the confluence of Satilla and Wiggins Creeks downstream to RKM 0;
    (7) South Atlantic Unit 7 includes the main stem St. Marys River 
from the confluence of Middle Prong St. Marys and the St. Marys Rivers 
downstream to RKM 0; and
    (8) South Atlantic Unoccupied Unit 1 includes the main stem 
Savannah River from the Augusta Diversion Dam downstream to the New 
Savannah Bluff Lock and Dam.
    (9) Maps of the South Atlantic DPS follow:

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[FR Doc. 2016-12744 Filed 6-2-16; 8:45 am]
 BILLING CODE 3510-22-C