[Federal Register Volume 89, Number 79 (Tuesday, April 23, 2024)]
[Proposed Rules]
[Pages 30311-30314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08567]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2024-0022; FXES11110900000-245-FF09E21000]


Endangered and Threatened Wildlife and Plants; 12-Month Finding 
for Lake Sturgeon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notification of petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
12-month finding on a petition to list the lake sturgeon (Acipenser 
fulvescens) as an endangered or threatened species under the Endangered 
Species Act of 1973, as amended (Act). After a thorough review of the 
best available scientific and commercial information, we find that 
listing the lake sturgeon as an endangered or threatened species is not 
warranted at this time. However, we ask the public to submit to us at 
any time any new information relevant to the status of the lake 
sturgeon or its habitat.

DATES: The finding in this document was made April 23, 2024.

ADDRESSES: A detailed description of the basis for this finding is 
available on the internet at https://www.regulations.gov under Docket 
No. FWS-R3-ES-2024-0022. Supporting information used to prepare this 
finding is available by contacting the person listed under FOR FURTHER 
INFORMATION CONTACT. Please submit any new information, materials, 
comments, or questions concerning this finding to the person listed 
under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: Barbara Hosler, Regional Listing 
Coordinator, Midwest Regional Office, 517-351-6326, 
[email protected]. Individuals in the United States who are deaf, 
deafblind, hard of hearing, or have a speech disability may dial 711 
(TTY, TDD, or TeleBraille) to access telecommunications relay services. 
Individuals outside the United States should use the relay services 
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Background

    Under section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.), we 
are required to make a finding on whether or not a petitioned action is 
warranted within 12 months after receiving any petition that we have 
determined contains substantial scientific or commercial information 
indicating that the petitioned action may be warranted (``12-month 
finding''). We must make a finding that the petitioned action is: (1) 
Not warranted; (2) warranted; or (3) warranted, but precluded by other 
listing activity. We must publish a notification of the 12-month 
finding in the Federal Register.

Summary of Information Pertaining to the Five Factors

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations at part 424 of title 50 of the Code of Federal Regulations 
(50 CFR part 424) set forth procedures for adding species to, removing 
species from, or reclassifying species on the Lists of Endangered and 
Threatened Wildlife and Plants (Lists). The Act defines ``species'' as 
including any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature. The Act defines ``endangered 
species'' as any species that is in danger of extinction throughout all 
or a significant portion of its range (16 U.S.C. 1532(6)), and 
``threatened species'' as any species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range (16 U.S.C. 1532(20)). Under section 
4(a)(1) of the Act, a species may be determined to be an endangered 
species or a threatened species because of any of the following five 
factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself. However, the mere 
identification of any threat(s) does not necessarily mean that the 
species meets the statutory definition of an ``endangered species'' or 
a ``threatened species.'' In determining whether a species meets either 
definition, we must evaluate all identified threats by considering the 
expected response by the species, and the effects of the threats--in 
light of those actions and conditions that will ameliorate the 
threats--on an individual, population, and species level. We evaluate 
each threat and its expected effects on the species, then analyze the 
cumulative effect of all of the threats on the species as a whole. We 
also consider the cumulative effect of the threats in light of those 
actions and conditions that will have positive effects on the species, 
such as any existing regulatory mechanisms or conservation efforts. The 
Secretary of the Interior determines whether the species meets the 
Act's definition of an ``endangered species'' or a ``threatened 
species'' only after conducting this cumulative analysis and describing 
the expected effect on the species now and in the foreseeable future.

[[Page 30312]]

    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain;'' it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    In conducting our evaluation of the five factors provided in 
section 4(a)(1) of the Act to determine whether lake sturgeon meets the 
Act's definition of an ``endangered species'' or ``threatened 
species,'' we considered and thoroughly evaluated the best scientific 
and commercial information available regarding the past, present, and 
future stressors and threats. We reviewed the petition, information 
available in our files, and other available published and unpublished 
information for the species. Our evaluation may include information 
from recognized experts; Federal, State, and Tribal governments; 
academic institutions; foreign governments; private entities; and other 
members of the public.
    The species assessment form for the lake sturgeon contains more 
detailed biological information, a thorough analysis of the listing 
factors, a list of literature cited, and an explanation of why we 
determined that the species does not meet the Act's definition of an 
``endangered species'' or a ``threatened species.'' To inform our 
status reviews, we completed a species status assessment (SSA) report 
for the lake sturgeon. The SSA report contains a thorough review of the 
taxonomy, life history, ecology, current status, and projected future 
status for the lake sturgeon. This supporting information can be found 
on the internet at https://www.regulations.gov under the Docket No. 
FWS-R3-ES-2024-0022.
    Our analysis for this decision applied our current regulations, 
portions of which were last revised in 2019. Given that we proposed 
further revisions to these regulations on June 22, 2023 (88 FR 40764), 
we have also analyzed whether the decision would be different if we 
were to apply those proposed revisions. We concluded that the decision 
would have been the same if we had applied the proposed 2023 
regulations. The analyses under both the regulations currently in 
effect and the regulations after incorporating the June 22, 2023, 
proposed revisions are included in our decision file for this action.

Previous Federal Actions

    On May 23, 2018, we received a petition from the Center for 
Biological Diversity requesting that the lake sturgeon (Acipenser 
fulvescens) be listed as an endangered or threatened species rangewide, 
or in nine petitioned distinct population segments, and critical 
habitat be designated for this species under the Act. On August 15, 
2019, we published a 90-day finding (84 FR 41691) that the petition 
contained substantial information indicating listing may be warranted 
for the species. A complaint was filed on February 20, 2020, by the 
Center for Biological Diversity, Fishable Indiana Streams for Hoosiers, 
Hoosier Environmental Council, and Prairie Rivers Network alleging that 
we failed to make a 12-month finding on the May 23, 2018, petition to 
list the lake sturgeon. As a result of the litigation, we have a court-
ordered date of June 30, 2024, to deliver a 12-month finding to the 
Federal Register. This document constitutes our 12-month finding on the 
May 23, 2018, petition to list the lake sturgeon under the Act.
    The petition also included nine potential distinct population 
segments (DPSs): Lake Superior, western Lake Michigan, Red River, Rainy 
Lake/Rainy River/Lake of the Woods, upper Mississippi River, Missouri 
River, Ohio River, Arkansas-White River, and the lower Mississippi 
River. After evaluating these populations under our 1996 Policy 
Regarding the Recognition of Distinct Vertebrate Population Segments 
Under the Endangered Species Act (DPS policy; 61 FR 4722, February 7, 
1996), we found that each population is not discrete because it is not 
markedly separated from other populations of lake sturgeon, with 
evidence of migration and movement between each petitioned DPS and a 
population of lake sturgeon outside of the petitioned DPS. In addition, 
the Red River and Rainy Lake/Rainy River/Lake of the Woods petitioned 
DPSs are not discrete because they do not have significant differences 
in the control of exploitation, management of habitat, conservation 
status, or regulatory mechanisms from the connected lake sturgeon 
populations in Canada. For a more detailed discussion of our DPS 
analysis, please see the species assessment form.
    Using the best available information, we determined that none of 
the petitioned DPSs meets the criteria for discreteness in our DPS 
policy. Because we did not find any of the petitioned DPSs to be 
discrete, we did not evaluate significance under the DPS policy. 
Therefore, we proceed with determining whether the lake sturgeon meets 
the Act's definition of an endangered or threatened species throughout 
all or a significant portion of its range.

Summary of Finding

    Historically, lake sturgeon were widely distributed across the 
eastern and central United States and Canada. In Canada, the species 
was found within the Hudson Bay and Great Lakes watersheds and in 
rivers and lakes in Alberta, Saskatchewan, Manitoba, Ontario, and 
Quebec. In U.S. waters, they were distributed throughout the Great 
Lakes and their tributaries, the Mississippi River basin, as well as an 
isolated population in the Mobile River Basin in Alabama and Georgia. 
Although lake sturgeon occupy a reduced area today, they remain 
distributed in the four major North American drainages they occupied 
historically, including the Mississippi River basin, the Great Lakes, 
Hudson Bay, and the Mobile River Basin.
    Sturgeon have a prehistoric appearance because of their large size, 
shark-like tails, and bony plate-armored covering. Lake sturgeon 
possess a torpedo-shaped body that is protected by five lateral rows of 
scutes (bony, diamond-shaped scales). Lake sturgeon are a long-lived 
fish, living to 150 years of age, and are late maturing, with males 
taking 12-20 years to mature and females taking 15-30 years. Two key 
habitat needs for lake sturgeon are access to suitable spawning and 
nursery habitat, and connectivity between all habitat types (Service 
2023, pp. 12-13). Lake sturgeon travel from lakes and large rivers 
(foraging habitat) to tributaries (spawning habitat) to spawn, then the 
resulting lake sturgeon larvae will drift downstream to the mouth of

[[Page 30313]]

rivers (nursery habitat) until they are large enough to move to larger 
bodies of water. Spawning habitat generally consists of coarser 
substrate with interstitial spacing, water temperatures ranging from 
about 8-23.3 degrees Celsius ([deg]C) (47-72 degrees Fahrenheit 
([deg]F)), and sufficient water flow in riverine habitat. Nursery 
habitat is similar, defined by riverine habitat with both fine sediment 
and coarser substrates, sufficient water flow, appropriate water 
temperatures, and food availability. To complete its life cycle, lake 
sturgeon need spawning, nursery, and adult foraging habitat to be 
connected and accessible. These habitat needs are also essential to 
supporting natural recruitment and adult abundance of life sturgeon. 
Generally, if spawning and nursery habitat are accessible, then natural 
recruitment will occur, which in turn will increase adult abundance.
    For lake sturgeon populations to be resilient, they need a healthy 
demography (i.e., stable or positive growth rates), habitat that 
provides connectivity to allow for gene flow among subpopulations, and 
sufficient habitat quality and quantity to support healthy individuals. 
For a lake sturgeon population to be considered demographically 
healthy, it needs a minimum of 750 total spawning adults and successful 
spawning and recruitment that occurs in most years. Lake sturgeon need 
widespread, naturally recruiting, abundant populations for redundancy. 
Additionally, lake sturgeon need genetic, behavioral, and ecological 
diversity across their range to have sufficient representation to adapt 
to future environmental change.
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to lake sturgeon, and we evaluated all relevant factors under the five 
listing factors, including any regulatory mechanisms and conservation 
measures addressing these threats. The primary threats affecting the 
lake sturgeon's biological status are dams, barriers, and climate 
change (Service 2023, pp. 14-15, 17-22). Dams and barriers occur across 
the lake sturgeon's range and can block access to spawning and nursery 
habitat, stopping lake sturgeon from completing their life cycle, thus 
making this the most significant threat to the species.
    We focused on the potential effects that warming water 
temperatures, as a result of climate change, could have on the lake 
sturgeon (Service 2023, pp. 24-25, 121-125). Warming water temperatures 
could have negative effects on the species by changing the timing of 
spawning runs and decreasing available habitat if waters get too warm. 
Warming water temperatures could also have a positive effect by 
increasing growth rate and creating habitat out of areas that were 
previously too cold. Other threats we considered in our analysis, but 
did not find to rise to a major species-level impact, include water 
quality degredation and pollution, disease and predation, recreational 
fishing, illegal harvest, effects of lamprey control, invasive species, 
loss of genetic diversity, and genetic risks from stocking. For more 
information on our analysis of these threats, see the SSA report 
(Service 2023, pp. 13-44).
    The primary conservation measure for the lake sturgeon is stocking 
of captive-reared lake sturgeon. Stocking efforts occur across much of 
the lake sturgeon's range and have brought areas back from extirpation 
and bolstered the resiliency of existing populations (Service 2023, pp. 
44-110). Other conservation measures we considered in our analysis 
include restoring connectivity of habitat through dam removal, creation 
of fish passages, habitat restoration, and invasive and non-native 
species eradication and control programs. Restoration of connectivity 
and habitat can have significant positive effects on lake sturgeon, but 
these benefits are more localized or benefit certain populations.
    During the late 1800s and early 1900s, commercial harvest severely 
reduced the abundance of lake sturgeon while the construction of dams 
and channelization and dredging reduced the amount and accessibility of 
spawning and nursery habitat. By the late 1900s, lake sturgeon harvest 
was, and remains, heavily regulated and monitored by State agencies, 
effectively removing the threat of overharvest (Service 2023, pp. 30-
42). While the threat dams pose to the species remains across the 
species' range, reducing access to spawning and nursery habitat, there 
have been significant efforts to recover the lake sturgeon. Stocking 
programs have helped to reintroduce or supplement populations of the 
lake sturgeon across much of its range, including six of eight 
representation units in the United States and three of four 
designatable units in Canada, providing increased resiliency for 
populations that are stocked (Service 2023, pp. 44-110). Along with 
stocking, restoration of connectivity has improved the ability of 
populations to recover naturally, such as in the Red River of the North 
(Service 2023, pp. 79-84). Due to the significant ongoing conservation 
and management efforts across the range of the species, areas that are 
being managed are trending positively and have increased resiliency 
compared to past decades (Service 2023, pp. 44-110). In addition, 
although abundance has been drastically reduced, highly and moderately 
resilient populations are still widely distributed, providing 
sufficient redundancy for the species rangewide (Service 2023, pp. 110-
113).
    Overall, lake sturgeon representation has been reduced from 
historical levels, but the species still maintains a moderate to high 
level of representation in multiple ways (Service 2023, pp. 113-116). 
While genetic diversity has been lost in the southernmost part of the 
range due to extirpations, the species has generally maintained a high 
level of genetic diversity. In addition, lake sturgeon may have some 
inherent phenotypic plasticity to respond to stressors. Lake sturgeon 
may have the ability to adapt to warming climates and can thrive in 
many different ecological settings. The primary reason representation 
has been reduced from historical levels is because the widescale 
construction of dams has reduced the ability of lake sturgeon to move 
up tributaries to spawn. However, lake sturgeon have a high level of 
adaptability to local changes and environmental conditions. Therefore, 
although dams have reduced representation from historical levels, the 
lake sturgeon currently has a sufficient level of representation to 
adapt to environmental changes (Service 2023, pp. 113-116).
    In summary, the lake sturgeon has many highly and moderately 
resilient populations distributed throughout its range that provide 
sufficient redundancy for the species and the adaptive capacity to 
withstand near-term and long-term changes to the environment. Thus, 
after assessing the best available information, we conclude that the 
lake sturgeon is not in danger of extinction throughout all of its 
range.
    Therefore, we proceed with determining whether the lake sturgeon is 
likely to become endangered within the foreseeable future throughout 
all of its range. We carried three major influences into our future 
condition analysis: dams, stocking, and climate change. We considered 
other influences and conservation efforts described in the SSA report, 
but we identified these three influences as having the highest 
likelihood of a potentially significant, species-wide impact into the 
future.
    We do not anticipate the number of dams to change significantly 
across the range of the species in the future, meaning the effects of 
dams on the lake

[[Page 30314]]

sturgeon at the species level will likely remain similar to the current 
level of effects (Service 2023, pp. 117-118). While we expect dams and 
barriers to continue to have a significant negative effect on the lake 
sturgeon, we expect the stocking programs occurring in six of eight 
representation units in the United States and three of four 
designatable units in Canada to continue until management objectives 
are met; see the species assessment form and SSA report for management 
objectives (Service 2023, pp. 121-122). These representation and 
designatable units are generally trending upwards, largely because of 
conservation efforts. Due to a strong, long-term commitment to 
reestablishment and supplementation efforts by States and Tribes, we 
expect these efforts to continue until such time that they are no 
longer necessary. Overall, we expect lake sturgeon populations that are 
currently trending upward to continue to trend upward in the future, 
improving resiliency and redundancy for the species. The species 
current condition and positive trends from ongoing conservation efforts 
support species' viability in the face of environmental stochasticity 
and potential catastrophic events.
    There is much uncertainty regarding how the lake sturgeon will 
respond to changes in habitat due to climate change. However, because 
of the species' relatively wide thermal tolerance, ability to move, and 
ability to adjust spawning phenology, the lake sturgeon shows a high 
degree of adaptability to climate change, although that adaptability 
will likely be limited by its ability to access suitable habitats. 
Overall, we expect representation in the future to remain similar to 
the current condition and remain sufficient to adapt to environmental 
changes.
    In summary, the lake sturgeon is projected to have: (1) increased 
resiliency in populations with ongoing conservation efforts, (2) highly 
and moderately resilient populations distributed throughout its range 
that provide sufficient redundancy for the species, and (3) the 
adaptive capacity to withstand near-term and long-term changes to the 
environment. After assessing the best available information, we 
conclude that the lake sturgeon is not likely to become endangered 
within the foreseeable future throughout all of its range.
    We also evaluated whether the lake sturgeon is endangered or 
threatened in a significant portion of its range. We evaluated four 
portions (i.e., all analysis units that are currently functionally 
extirpated or have low overall resiliency and designatable units in a 
remnant status, the Hudson Bay drainage, the Atlantic drainage, and the 
Gulf of Mexico drainage) and did not find them to be significant 
because they are not large geographic areas relative to the range of 
the species as a whole and they do not constitute habitat of high 
quality or unique value relative to the remaining portions of the range 
of lake sturgeon. Because we did not find any portion to be 
significant, we did not evaluate whether any portion is in danger of 
extinction either now or within the foreseeable future. Therefore, we 
did not find any portions of the lake sturgeon's range for which both 
(1) the portion is significant; and (2) the species is in danger of 
extinction in that portion, either now or within the foreseeable 
future. Thus, after assessing the best available information, we 
conclude that the lake sturgeon is not in danger of extinction in a 
significant portion of its range now, or within the foreseeable future.
    After assessing the best available information, we concluded that 
the lake sturgeon is not in danger of extinction or likely to become in 
danger of extinction within the foreseeable future throughout all of 
its range or in any significant portion of its range. Therefore, we 
find that listing the lake sturgeon as an endangered species or 
threatened species under the Act is not warranted. A detailed 
discussion of the basis for this finding can be found in the lake 
sturgeon species assessment form and other supporting documents on 
https://www.regulations.gov under Docket No. FWS-R3-ES-2024-0022 (see 
ADDRESSES, above).

Peer Review

    In accordance with our July 1, 1994, peer review policy (59 FR 
34270; July 1, 1994) and the Service's August 22, 2016, Director's Memo 
on the Peer Review Process, we solicited independent scientific reviews 
of the information contained in the lake sturgeon SSA report. The 
Service sent the SSA report to nine independent peer reviewers and 
received three responses. Results of this structured peer review 
process can be found at https://www.regulations.gov under Docket No. 
FWS-R3-ES-2024-0022. We incorporated the results of these reviews, as 
appropriate, into the SSA report, which is the foundation for this 
finding.

New Information

    We request that you submit any new information concerning the 
taxonomy of, biology of, ecology of, status of, or stressors to the 
lake sturgeon to the person listed above under FOR FURTHER INFORMATION 
CONTACT, whenever it becomes available. New information will help us 
monitor this species and make appropriate decisions about its 
conservation and status. We encourage local agencies and stakeholders 
to continue cooperative monitoring and conservation efforts.

References Cited

    A list of the references cited in this document is available on the 
internet at https://www.regulations.gov under Docket No. FWS-R3-ES-
2024-0022 in the species assessment form, or upon request from the 
person listed above under FOR FURTHER INFORMATION CONTACT.

Authors

    The primary authors of this document are the staff members of the 
Species Assessment Team, Ecological Services Program.

Signing Authority

    Martha Williams, Director of the U.S. Fish and Wildlife Service, 
approved this action on March 12, 2024, for publication. On April 16, 
2024, Martha Williams authorized the undersigned to sign the document 
electronically and submit it to the Office of the Federal Register for 
publication as an official document of the U.S. Fish and Wildlife 
Service.

Authority

    The authority for this action is section 4 of the Endangered 
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics of the Joint Administrative Operations, U.S. 
Fish and Wildlife Service.
[FR Doc. 2024-08567 Filed 4-22-24; 8:45 am]
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