[Federal Register Volume 89, Number 142 (Wednesday, July 24, 2024)]
[Proposed Rules]
[Pages 59881-59888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16253]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 223 and 224
[Docket No. 240718-0199; RTID 0648-XR134]
Endangered and Threatened Wildlife; 90-Day Finding on a Petition
To List the Alabama Shad as Threatened or Endangered Under the
Endangered Species Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Department of Commerce.
ACTION: 90-Day petition finding; request for information, and
initiation of a status review.
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SUMMARY: We, NMFS, announce a 90-day finding on a petition to list the
Alabama shad (Alosa alabamae) as threatened or endangered under the
Endangered Species Act (ESA). The petitioners also request that we
designate critical habitat. We find that the petition presents
substantial scientific or commercial information indicating that the
petitioned action may be warranted. Therefore, we are initiating a
status review of the Alabama shad to determine whether listing under
the ESA is warranted. To support a comprehensive status review, we are
soliciting scientific and commercial information regarding this species
from any interested party.
DATES: Scientific and commercial information pertinent to the
petitioned action must be received by September 23, 2024.
ADDRESSES: You may submit scientific and commercial information
relevant to our review of the status of Alabama shad, identified by
``Alabama shad Petition'' or by the docket number, NOAA-NMFS-2024-0052
by the following method:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to https://www.regulations.gov and enter NOAA-NMFS-2024-0052 in the Search box.
Click on the ``Comment'' icon, complete the required fields, and enter
or attach your comments.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
https://www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Interested persons may obtain a copy of the petition online at the
NMFS website: https://www.fisheries.noaa.gov/endangered-species-conservation/candidate-species-under-endangered-species-act.
FOR FURTHER INFORMATION CONTACT: Calusa Horn, NMFS Southeast Region, at
[email protected], (727) 551-5782; or Heather Austin, NMFS Office of
Protected Resources, at [email protected], (301) 427-8422.
SUPPLEMENTARY INFORMATION:
Background
On January 9, 2024, we received a petition from the Center for
Biological Diversity, the Miccosukee Tribe of Indians, Alabama Rivers
Alliance, American Whitewater, Black Warrior Riverkeeper, Cahaba
Riverkeeper, Chattahoochee Riverkeeper, Choctawhatchee Riverkeeper,
Coosa Riverkeeper, Forest Keeper, Healthy Gulf, Healthy Oceans
Coalition, Mobile Baykeeper, and Pearl Riverkeeper (Petitioners) to
list the Alabama shad (Alosa alabamae) as an endangered or threatened
species under the ESA, and to designate critical habitat concurrent
with the listing. The petition asserts that
[[Page 59882]]
Alabama shad is threatened by all five of the ESA section 4(a)(1)
factors: (1) the present or threatened destruction, modification, or
curtailment of habitat or range; (2) overutilization for commercial,
recreational, scientific, or educational purposes; (3) disease or
predation; (4) the inadequacy of existing regulatory mechanisms to
address identified threats; and (5) other natural or manmade factors
affecting its continued existence (16 U.S.C. 1533(a)(1), 50 CFR
424.11(c)). The petition is available online (see ADDRESSES, above).
This is the second petition we have received from the Center for
Biological Diversity to list the Alabama shad under the ESA. The first
petition was received on April 20, 2010. On February 17, 2011, we
published a negative 90-day finding (76 FR 9320) stating that the
petition did not present substantial scientific or commercial
information indicating that the petitioned action to list Alabama shad
may be warranted. On April 28, 2011, in response to the negative 90-day
finding, the Center for Biological Diversity filed a notice of intent
to sue the Department of Commerce and NMFS for alleged violations of
the ESA in making its finding. The Center for Biological Diversity
filed the lawsuit in the U.S. District Court for the District of
Columbia on January 18, 2012. On June 21, 2013, Center for Biological
Diversity and Department of Commerce settled the lawsuit. We agreed to
reevaluate the original listing petition, as well as information in our
files, and publish a new 90-day finding. On September 19, 2013, we
published a 90-day finding with our determination that the petition
presented substantial scientific and commercial information indicating
that the petitioned action may be warranted (78 FR 57611). On January
12, 2017, we determined that listing Alabama shad as threatened or
endangered under the ESA was not warranted and published a 12-month
finding in the Federal Register (82 FR 4022).
ESA Statutory, Regulatory, and Policy Provisions, and Evaluation
Framework
Section 4(b)(3)(A) of the ESA of 1973, as amended (16 U.S.C. 1531
et seq.), requires, to the maximum extent practicable, that within 90
days of receipt of a petition to list a species as threatened or
endangered, the Secretary of Commerce make a finding on whether that
petition presents substantial scientific or commercial information
indicating that the petitioned action may be warranted, and to promptly
publish such finding in the Federal Register (16 U.S.C. 1533(b)(3)(A)).
When it is found that substantial scientific or commercial information
in a petition indicates the petitioned action may be warranted (a
``positive 90-day finding''), we are required to promptly commence a
review of the status of the species concerned during which we will
conduct a comprehensive review of the best available scientific and
commercial information. In such cases, we conclude the review with a
finding as to whether the petitioned action is warranted within 12
months of receipt of the petition. Because the finding at the 12-month
stage is based on a more thorough review of the available information,
as compared to the narrow scope of review at the 90-day stage, a ``may
be warranted'' finding does not prejudge the outcome of the status
review.
Under the ESA, a listing determination must address a species,
which is defined to also include subspecies and, for any vertebrate
species, any distinct population segment (DPS) that interbreeds when
mature (16 U.S.C. 1532(16)). A joint NMFS-U.S. Fish and Wildlife
Service (USFWS) (jointly, ``the Services'') policy clarifies the
agencies' interpretation of the phrase ``distinct population segment''
for the purposes of listing, delisting, and reclassifying a species
under the ESA (61 FR 4722; February 7, 1996). A species, subspecies, or
DPS is ``endangered'' if it is in danger of extinction throughout all
or a significant portion of its range, and ``threatened'' if it is
likely to become endangered within the foreseeable future throughout
all or a significant portion of its range (ESA sections 3(6) and 3(20),
respectively, 16 U.S.C. 1532(6) and (20)). Pursuant to the ESA and our
implementing regulations, we determine whether species are threatened
or endangered based on any one or a combination of the following five
section 4(a)(1) factors: the present or threatened destruction,
modification, or curtailment of habitat or range; overutilization for
commercial, recreational, scientific, or educational purposes; disease
or predation; inadequacy of existing regulatory mechanisms to address
identified threats; or any other natural or manmade factors affecting
the species' existence (16 U.S.C. 1533(a)(1), 50 CFR 424.11(c)).
ESA-implementing regulations issued jointly by the Services (50 CFR
424.14(h)(1)(i)) define ``substantial scientific or commercial
information'' in the context of reviewing a petition to list, delist,
or reclassify a species as credible scientific or commercial
information in support of the petitioner's claims such that a
reasonable person conducting an impartial scientific review would
conclude that the action proposed in the petition may be warranted.
Conclusions drawn in the petition without the support of credible
scientific or commercial information will not be considered
``substantial information.'' In reaching the initial (90-day) finding
on the petition, we will consider the information described in 50 CFR
424.14(c), (d), and (g) (if applicable). Our determination as to
whether the petition provides substantial scientific or commercial
information indicating that the petitioned action may be warranted will
depend in part on the degree to which the petition includes the
following types of information: (1) information on current population
status and trends and estimates of current population sizes and
distributions, both in captivity and the wild, if available; (2)
identification of the factors under section 4(a)(1) of the ESA that may
affect the species and where these factors are acting upon the species;
(3) whether and to what extent any or all of the factors alone or in
combination identified in section 4(a)(1) of the ESA may cause the
species to be an endangered species or threatened species (i.e., the
species is currently in danger of extinction or is likely to become so
within the foreseeable future), and, if so, how high in magnitude and
how imminent the threats to the species and its habitat are; (4)
information on adequacy of regulatory protections and effectiveness of
conservation activities by States as well as other parties, that have
been initiated or that are ongoing, that may protect the species or its
habitat; and (5) a complete, balanced representation of the relevant
facts, including information that may contradict claims in the
petition. See 50 CFR 424.14(d).
If the petitioners provide supplemental information before the
initial finding is made and states that it is part of the petition, the
new information, along with the previously submitted information, is
treated as a new petition that supersedes the original petition, and
the statutory timeframes will begin when such supplemental information
is received. See 50 CFR 424.14(g).
We may also consider information readily available at the time the
determination is made (50 CFR 424.14(h)(1)(ii)). We are not required to
consider any supporting materials cited by the petitioners if the
petitioners do not provide electronic or hard copies, to the extent
permitted by U.S. copyright law, or appropriate excerpts or quotations
from those materials (e.g.,
[[Page 59883]]
publications, maps, reports, and letters from authorities). See 50 CFR
424.14(c)(6).
The ``substantial scientific or commercial information'' standard
must be applied in light of any prior reviews or findings we have made
on the listing status of the species that is the subject of the
petition (50 CFR 424.14(h)(1)(iii)). Where we have already conducted a
finding on, or review of, the listing status of that species (whether
in response to a petition or on our own initiative), we will evaluate
any petition received thereafter seeking to list, delist, or reclassify
that species to determine whether a reasonable person conducting an
impartial scientific review would conclude that the action proposed in
the petition may be warranted despite the previous review or finding.
Where the prior review resulted in a final agency action--such as a
final listing determination, 90-day not-substantial finding, or 12-
month not-warranted finding--a petitioned action will generally not be
considered to present substantial scientific and commercial information
indicating that the action may be warranted unless the petition
provides new information or analysis not previously considered.
At the 90-day finding stage, we do not conduct additional research,
and we do not solicit information from parties outside the agency to
help us in evaluating the petition. We will accept the petitioners'
sources and characterizations of the information presented if they
appear to be based on accepted scientific principles, unless we have
specific information in our files that indicates the petition's
information is incorrect, unreliable, obsolete, or otherwise irrelevant
to the requested action. Information that is susceptible to more than
one interpretation or that is contradicted by other available
information will not be dismissed at the 90-day finding stage, so long
as it is reliable and a reasonable person conducting an impartial
scientific review would conclude it supports the petitioners'
assertions. In other words, conclusive information indicating the
species may meet the ESA's requirements for listing is not required to
make a positive 90-day finding. We will not conclude that a lack of
specific information alone necessitates a negative 90-day finding if a
reasonable person conducting an impartial scientific review would
conclude that the unknown information itself suggests the species may
be at risk of extinction presently or within the foreseeable future.
To make a 90-day finding on a petition to list a species, we
evaluate whether the petition presents substantial scientific or
commercial information indicating the subject species may be either
threatened or endangered, as defined by the ESA. First, we evaluate
whether the information presented in the petition, in light of the
information readily available in our files, indicates that the
petitioned entity constitutes a ``species'' eligible for listing under
the ESA. Next, we evaluate whether the information indicates that the
species faces an extinction risk such that listing, delisting, or
reclassification may be warranted; this may be indicated in information
expressly discussing the species' status and trends, or in information
describing impacts and threats to the species. We evaluate any
information on specific demographic factors pertinent to evaluating
extinction risk for the species (e.g., population abundance and trends,
productivity, spatial structure, age structure, sex ratio, diversity,
current and historical range, habitat integrity or fragmentation), and
the potential contribution of identified demographic risks to
extinction risk for the species. We then evaluate the potential links
between these demographic risks and the causative impacts and threats
identified in section 4(a)(1).
Information presented on impacts or threats should be specific to
the species and should reasonably suggest that one or more of these
factors may be operative threats that act or have acted on the species
to the point that it may warrant protection under the ESA. Broad
statements about generalized threats to the species, or identification
of factors that could negatively impact a species, do not constitute
substantial information indicating that listing may be warranted. We
look for information indicating that, not only is the particular
species exposed to a factor, but that the species may be responding in
a negative fashion; then we assess the potential significance of that
negative response.
Many petitions identify risk classifications made by
nongovernmental organizations, such as the International Union for
Conservation of Nature (IUCN), the American Fisheries Society, or
NatureServe, as evidence of extinction risk for a species. Risk
classifications by such organizations or made under other Federal or
State statutes may be informative, but such classification alone will
not provide sufficient basis for a positive 90-day finding under the
ESA. For example, as explained by NatureServe, their assessments of a
species' conservation status do not constitute a recommendation by
NatureServe for listing under the ESA, because NatureServe assessments
have different criteria, evidence requirements, purposes, and taxonomic
coverage than government lists of endangered and threatened species,
and therefore these two types of lists should not be expected to
coincide (https://explorer.natureserve.org/AboutTheData/DataTypes/ConservationStatusCategories). Additionally, species classifications
under IUCN and the ESA are not equivalent; data standards, criteria
used to evaluate species, and treatment of uncertainty are also not
necessarily the same. Thus, when a petition cites such classifications,
we will evaluate the source of information that the classification is
based upon in light of the standards on extinction risk and impacts or
threats discussed above.
Alabama Shad Species Description
Alabama shad belong to the family Clupeidae and are closely related
to, as well as similar in appearance and life history, to skipjack
herring (A. chrysochloris) which occur in the same areas as Alabama
shad. The Alabama shad is an anadromous species, carrying out life
stages in both marine and freshwater environments. Alabama shad are
found in the Gulf of Mexico, although there is very little information
about their marine habitat use. As part of their anadromous life cycle,
adult Alabama shad leave the Gulf of Mexico, sometimes migrating
several hundred kilometers, and move into freshwater rivers in the
spring to spawn (Coker 1930; Lee et al. 1980; Buchanan et al. 1999;
Kreiser and Schaeffer 2009). Alabama shad appear to be philopatric and
return to the same rivers to spawn, resulting in slight genetic
differences among river drainages (Meadows 2008; Mickle et al. 2010).
Spawning typically occurs in moderate current near sandbars, limestone
outcrops, or over sand substrate with water temperatures ranging from
19 to 23 [deg]C (66 to 73 [deg]F) (Laurence and Yerger 1967; Mills
1972; Mettee and O'Neil 2003). The Alabama shad is relatively short
lived, up to 6 years (Mettee and O'Neil 2003). They are generalist
insect feeders (Mickle et al. 2010). Age-2 and age-3 Alabama shad are
the most prevalent age class of spawning adults (Laurence and Yerger
1967; Mettee and O'Neil 2003; Ingram 2007). Individuals may spawn more
than once in a lifetime (Laurence and Yerger 1967; Mettee and O'Neil
2003; Ingram 2007; Mickle et al. 2010). Laurence and Yerger (1967)
indicated that 35 percent of Alabama shad were likely repeat spawners
and noted that 2-4 year old males from the Apalachicola-Chattahoochee-
Flint (ACF) River system had spawning marks on their scales.
[[Page 59884]]
Mills (1972) also observed 35-38 percent repeat spawners (mostly age-3)
as well as discernable spawning marks on scales from the ACF
population. In addition, Mettee and O'Neil (2003) noted that many
Alabama shad collected from the Choctawhatchee River were repeat
spawners, with age-3 and age-4 females comprising the majority of
repeat spawners in 1994-1995, and age-2 and age-3 females the majority
in 1999-2000. In contrast, Ingram (2007) has not observed spawning
marks on the scales of ACF population and most fish in that system may
die after spawning (Smith et al. 2011). Annual fecundity ranges from
approximately 16,000 to 360,000 eggs per female (Mettee and O'Neil
2003; Ingram 2007). First-year (age-0) juvenile Alabama shad typically
inhabit upriver freshwater environments until late summer or fall,
after which they migrate downstream toward the Gulf of Mexico (Mettee
and O'Neil, 2003; Mickle et al. 2010).
Analysis of the Petition
We first evaluated whether the petition presented the information
indicated in 50 CFR 424.14(c) and (d). We find that the petitioners
presented the required information in 50 CFR 424.14(c) and sufficient
information requested in Sec. 424.14(d) to allow us to review the
petition. The petition contains information on the Alabama shad,
including the biological information, current and historical
distribution, population status, and threats contributing to the
species' status. The petitioners include new literature but also rely
heavily on expert opinion and personal communications with State
biologists and researchers. The petitioners provide an assessment of
new information that has become available since our previous finding
(82 FR 4022). The petitioners assert that the new information provides
substantial scientific and commercial information indicating that
Alabama shad have been extirpated from 90 percent of its historical
riverine habitats and is threatened by modification of habitat and
curtailment of its range, overexploitation, disease, pollution, climate
change, and inadequacy of existing regulatory measures. As previously
stated, the substantial scientific or commercial information standard
must be applied in light of any prior reviews or findings the Services
have made on the listing status of the species. Therefore, we will
consider the new information provided in the petition and any new
information readily available in our files to determine whether a
reasonable person conducting an impartial review would conclude it
presents substantial scientific or commercial information indicating
that the petitioned action may be warranted.
New Information on Abundance and Population Trends
The petitioners assert that NMFS was incorrect in determining that
low population numbers were due to challenges in Alabama shad
detectability and general lack of targeted survey and sampling efforts.
The petitioners also assert that detection probability and the timing
and sampling methods cannot be the sole cause of estimated low
abundances. To support this claim, the petitioners reference biologists
and researchers who also suggest that the low numbers of Alabama shad
are suggestive of long-term declining trends in abundance, rather than
an artifact of high natural variability or challenges with species
detectability (Rider et al. 2021; Schaefer, pers. comm. October 13,
2023; Quinn, pers. comm. October 17, 2023). The petitioners reference
new targeted survey efforts that suggest Alabama shad have been
extirpated from many river systems. In river systems where they still
occur, they occur in very low numbers (Rider et al. 2021; Rider, pers.
comm. November 3, 2023; Ingram. pers. comm. December 10, 2023; NOAA
Fisheries and U.S. Fish and Wildlife Records: Georgia, Florida,
Alabama, Mississippi, Louisiana, Oklahoma, Arkansas, 2023). The
petitioners claim the new survey information, together with the
historical data, indicate that the species has declined significantly
over the last decade and has been extirpated throughout much of its
historical range (Etnier and Starnes 1993; Gunning and Suttkus 1990;
Musik et al. 2000; Ross 2001; Mettee and O'Neil 2003; Boschung and
Mayden 2004; Sammons et al. 202; Rider et al. 2021). In the following
section, we summarize the new information relative to the species
abundance and status for Alabama, Florida, Georgia, Mississippi,
Missouri, and Arkansas.
For Alabama, our previous determination concluded that it is
unknown whether the lack of or low numbers of Alabama shad reported for
many river systems (including the Mobile Basin, Conecuh River, and
Choctawhatchee River) accurately reflects the abundance in those
systems, or whether the lack of or low numbers of Alabama shad is
indicative of the lack of targeted studies (82 FR 4022). At that time,
directed studies and contemporary abundance data for Alabama shad were
lacking for riverine systems in Alabama. Therefore, we concluded the
status of Alabama shad within most riverine systems in Alabama was
unknown and that low capture rates were likely due in part to sampling
bias (82 FR 4022).
The petitioners provide new information that indicates that Alabama
shad are largely extirpated from Alabama. Alabama shad historically
occurred in the Mobile Basin (i.e., Tombigbee, Black Warrior, Cahaba,
Coosa, and Alabama rivers) and the Conecuh-Escambia, Yellow, and
Choctawhatchee Rivers. Notably, the second largest Alabama shad
population occurs in the Choctawhatchee River (Mettee and O'Neil 2003;
Ely et al. 2008; Young et al. 2012). The petitioners present a new
study (Rider et al. 2021) that provides status information for the
species in the State and importantly also directly addresses the
sampling and survey bias concerns identified in our previous
determination (82 FR 4022). Rider et al. (2021) initiated a multiyear
study to assess the population status of Alabama shad with targeted
sampling efforts in the major river systems of its historical
occurrence in Alabama. To account for potential bias, Rider et al.
(2021) sampled during months when Alabama shad were most likely to be
present (i.e., spring spawning migration) and used electrofishing,
which is considered to be the most effective method to collect Alabama
shad. These directed survey efforts found no Alabama shad in the Mobile
River Basin (i.e., Alabama and Tombigbee Rivers) and only one
individual was collected from the Conecuh River (Rider et al. 2021).
Rider et al. (2021) indicates that Alabama shad have largely been
extirpated from the Mobile River Basin, with the only remaining Conecuh
River population being ``severely depressed.'' Additionally, the
authors determined that the Choctawhatchee River population is on the
verge of extirpation, which is cause for concern as this population was
once considered to have the second largest Alabama shad population
behind the ACF population. Rider et al. (2021) determined that Alabama
shad in the Choctawhatchee River have experienced a precipitous decline
by 71 percent and 98 percent from 1999/2000 to 2011 and 2018,
respectively. In summary, the petitioners provide new information that
indicates that the species has largely become extirpated from the State
of Alabama, with two remaining populations on the cusp of collapse.
For Florida and Georgia, our previous determination recognized the
importance of the ACF population to the viability of the species,
stating that, because the spawning population in the
[[Page 59885]]
ACF River system is large relative to other systems, migrants from the
ACF River system may make greater contributions as compared to shad
from smaller populations. The loss of the largest spawning population
of Alabama shad would leave only smaller populations of Alabama shad
and could make the species as a whole less resilient to environmental
perturbations, including catastrophic events (82 FR 4022). The
petitioners assert that Alabama shad have declined by greater than 90
percent in the ACF River system, which connects Florida and Georgia to
the Gulf of Mexico. The petitioners attribute population decline due to
the cessation of conservation locking at Jim Woodruff Lock and Dam
(JWLD). Located 300 meters (984 feet) downstream of the confluence of
the Flint and Chattahoochee Rivers, JWLD serves as the first upstream
barrier to the ACF population, blocking access to all potential
spawning habitat in both tributary rivers, which is approximately 78
percent of historical riverine habitat in the ACF River system (Marbury
et al. 2021). Historically, the ACF population has been the largest
(Mettee and O'Neil 2003; Ely et al. 2008; Young et al. 2012; 82 FR
4022) and most intensively studied population of Alabama shad (Laurence
and Yerger 1967; Ely et al. 2008; Ingram et al. 2009; Young et al 2012;
Kerns 2016). The petitioners provide some new catch per unit effort
data (CPUE) from 2016-2023 as well as information we previously
considered. The petitioners assert that the ACF population crashed from
an estimated population size of 122,578 in 2012 to an estimated
population size of 324 in 2015. While no new population estimates were
provided, the petition cites new survey information presented as CPUE
to consider: in 2016 the CPUE was 0 (no fish were collected), in 2017
the CPUE was 4.2, in 2021 the CPUE was 2.9, and in 2022 the CPUE was
18.5 (Georgia Department of Natural Resources, Alabama shad survey and
CPUE data 2007-2023). No information was provided for 2018, 2019, and
2021. The most recent CPUE in 2022 is higher than previous years. For
comparison, the CPUE for the year with the highest estimated population
(2012; 122,578 individuals) was 100.6 and the CPUE for the year with
the lowest estimated population (2015; 324 individuals) was 6.8
(Georgia Department of Natural Resources. Alabama shad survey and CPUE
data 2007-2023). The more recent CPUE data seem to suggest that CPUE
ranged from 0 fish to 18.5 in 2016 and 2022; however, the data are
incomplete and do not allow us to estimate population size or trends.
While CPUE can be used as an indirect measure of abundance, the
information provided is lacking and does not allow us to estimate
population size or the extent of the purported declining trends.
However, it does suggest some cause for concern, and warrants further
consideration in a status review.
In summary, the petitioners provide several lines of evidence that
suggest that the ACF population may be declining based on new but
incomplete survey data and the cessation of conservation locking at the
JWLD (See The Present or Threatened Destruction, Modification, or
Curtailment of the Alabama Shad Habitat or Range), which is blocking
migration and preventing access to important spawning habitats.
For Mississippi, the petitioners assert that the Alabama shad have
experienced a 50 percent decline in distribution. In our previous
determination (82 FR 4022), we found that Pascagoula River, which is a
relatively free-flowing river system, had one of the remaining spawning
populations of Alabama shad. The petitioners claim that the species is
now extirpated from the Tombigbee River (a major tributary of the
Mobile River) and the Pearl River, with the remaining population
located in the Pascagoula River in decline. Rider et al. (2021)
conducted directed sampling for Alabama shad on the Tombigbee River in
2012 but collected no Alabama shad. Additionally, other recent sampling
efforts in the Tombigbee River have been unable to collect or observe
any Alabama shad (Dattilo 2017; S. Rider, Alabama Dept. Wildlife and
Fisheries, Unpublished data, as cited in Rider et al. 2021). The
petitioners also cite a personal communication with a biologist that
indicates that the Alabama shad population in the Pearl River has
collapsed with targeted sampling from 2006-2011 and recent ``general
surveys'' having recorded few individuals over the last decade
(Schaefer, pers. comm. October 13, 2023). Lastly the petitioners note
that while Alabama shad still persist in the Pascagoula River, factors
other than damming are likely driving declines in that system
(Ellwanger, pers. comm. October 24, 2023).
In summary, the new information suggests that the Tombigbee River
population may be extirpated, which is cause for concern. While the
petitioners assert that the Pearl River population has also collapsed,
they did not provide the supporting information. The petition does not
include any new survey or status information that was not previously
considered by us for Pascagoula River.
For Missouri, our previous determination (82 FR 4022), concluded
that Alabama shad likely still spawned in the Missouri River, including
several tributaries (i.e., Gasconade, Osage, and Meramec Rivers). We
acknowledged that the Missouri River and its tributaries probably
supported the greatest number of Alabama shad in the State, but noted
the general lack of information and potential for sampling bias. The
petitioners summarize Alabama shad records from the lower Mississippi,
Missouri, Meramec, Gasconade, and Osage Rivers. The petitioners state
that Alabama shad can now only be found in the Meramec and Gasconade
Rivers. The petitioner's reference several new studies (Dunn et al.
2018; Dunn et al. 2021; Pherigo 2019) that they claim show the species
can no longer be found in the majority of Missouri's major tributaries.
For example, Dunn et al. (2018) conducted 38 fish surveys across 11
large tributaries (i.e., Black River, Blackwater River, Lamine River,
Lower Gasconade River, Upper Gasconade River, Lower Grand River, Upper
Grand River, Lower Meramec River, Upper Meramec River, Osage River, and
Salt River) and only found Alabama shad in the Gasconade and Meramec
Rivers. Alabama shad were not recorded on any other river sampled. Dunn
et al. (2018) concluded that the Gasconade and Meramec Rivers are now
the northernmost systems providing spawning and rearing habitat for
this species. In addition, Dunn et al. (2021) evaluated tributary use
patterns of riverine fishes in the Grand and Meramec Rivers, which are
two large tributaries of the Missouri and Upper Mississippi Rivers, and
yielded only 21 age-0 Alabama shad from the Meramec River, suggesting
spawning habitat. Lastly, Pherigo (2019) sampled fish assemblages in
the Osage River and Gasconade River and collected only four juveniles
in the Gasconade River. None were recorded in the Osage River.
In summary, these findings indicate that the Gasconade and Meramec
Rivers likely now represent the only two northernmost systems that
provide spawning and habitat for Alabama shad, which is cause for
concern. While these studies were not limited to Alabama shad, the
studies did occur in the spring, summer, and fall when both juvenile
and adult Alabama shad would have been present, and the studies used
sampling techniques (i.e., electrofishing, trawls, and seines) that are
appropriate for sampling Alabama shad.
For Arkansas, the petitioners state that Alabama shad have not been
recorded in the Arkansas reach of the Mississippi River or the Arkansas
River
[[Page 59886]]
Basin in more than a century. In our previous determination (82 FR
4022), we concluded that the status of Alabama shad in Arkansas was
unknown due to the lack of information and lack of targeted surveys
needed to inform whether low numbers reflected low abundance or
sampling bias. However, we noted that Alabama shad likely continued to
spawn in Arkansas because spawning adults and hundreds of juvenile fish
were documented in 1997 and 1998 in both the Ouachita and Little
Missouri Rivers (Buchanan 1999; Buchanan et al. 1999). The petitioners
assert that despite claims of annual spawning migrations in several
rivers within Arkansas, the majority of records for the State are now
limited to the Ouachita River. The petitioners provide new information
from a five-year study (2017-2021) to assess the status and
distribution of Alabama shad in Arkansas Rivers (Quinn et al. 2023).
The study focused on survey efforts on the Ouachita River and the
Little Missouri River, where Alabama shad have historically been
collected (i.e., Buchanan et al. (1999) reported collecting more than
300 juveniles from six localities in the Ouachita and Little Missouri
rivers). Despite these directed sampling efforts, Quinn et al. (2023)
collected one adult Alabama shad and no juveniles in the Ouachita
River. Yet, an unrelated study targeting American eel recorded 16
juvenile Alabama shad on the Ouachita River in 2021/2022, suggesting
some successful spawning occurred (Quinn et al. 2023). The new
information suggests that, while some spawning is occurring in the
Ouachita River, overall very few Alabama shad were recorded, even with
five years of targeted sampling in the Ouachita and Little Missouri
Rivers, which is cause for concern.
In summary, the new information presented in the petition indicates
potentially significant population declines in the ACF River system in
Florida and Georgia and the Choctawhatchee River in Alabama. These two
major river systems have long been observed to have the highest
abundance of Alabama shad within the species range (Burkaloo et al.
1993; Ely et al., 2008; Mettee and O'Neil 2003; Young 2010). The new
information on purported declines of these two important populations,
especially as it relates to the viability of the species, is
particularly concerning, and thus further investigation is warranted.
The new information also suggests population declines in Ouachita,
Little Missouri, and Conecuh-Escambia, and possible extirpation in the
Mobile Basin in Alabama, both of which are also concerning, considering
the declines noted in the ACF and Choctawhatchee Rivers. Overall, the
petitioners provide several lines of credible new information
suggesting that the species' current status and trends indicate that
listing may be warranted.
Analysis of ESA Section 4(a)(1) Factors
The petitioners assert that Alabama shad is threatened by all five
of the ESA section 4(a)(1) factors: present or threatened destruction,
modification, or curtailment of its habitat or range; overutilization
for commercial and recreational purposes; disease or predation;
inadequacy of existing regulatory mechanisms; and other natural or
manmade factors. Information in the petition and readily available in
our files indicates that the primary threat facing the species is
modification of its habitat, and we find that listing the Alabama shad
as a threatened or endangered species under the ESA may be warranted
based on this threat alone. Therefore, we focus our discussion below on
the evidence of this particular threat. However, we note that, in the
status review for this species, we will evaluate all ESA section
4(a)(1) factors to determine whether any one factor or a combination of
these factors are causing declines in the species or are likely to
substantially negatively affect the species within the foreseeable
future to such a point that the Alabama shad is at risk of extinction
or likely to become so in the foreseeable future.
The Present or Threatened Destruction, Modification, or Curtailment of
the Alabama Shad's Habitat or Range
According to information cited in the petition and readily
available in our files, the greatest threats to the Alabama shad are
the dams that occur on almost all the major river systems throughout
its range. The petitioners assert that over the last century at least
85 dams have been built on rivers within the Alabama shad's historical
range. The petitioners provide historical information, new personal
communications, relevant literature, and maps that illustrate the
prevalence of the dams on rivers throughout the species range. The
petitioners further summarize threats within individual rivers, which
include changes in temperature, low spring and summer stream flows,
passage blockages, droughts, increased sediment, degraded water
quality, and poor riparian conditions. For example, the petitioners
claim that changes in the flow-regime in the ACF River system have
disrupted mainstream and floodplain habitats, modifying features
essential for spawning and early life stages (Mickle et al. 2010;
Alabama Shad Restoration and Management Plan for the Apalachicola-
Chattahoochee-Flint River Basin 2008). The petitioners did not provide
any new information that was not previously considered by us regarding
the threats to Alabama shad resulting from habitat modification or
degradation caused by dams and hydropower projects.
The petitioners provide new information indicating riverine habitat
connectivity has been severed by several dams that had previously
provided Alabama shad passage through conservation locking regimes that
are no longer in place (Williams, pers. comm. December 7, 2023; Rider,
pers. comm. December 7, 2023). Most notable is the cessation of
conservation locking at the JWLD, which the petitioners implicate in
population collapses in that system. In our previous determination, we
concluded that conservation locking is making a tremendous contribution
to Alabama shad in the ACF River system, the bulk of the Alabama shad
population in the ACF River system is spawning in the Flint River, and
juvenile Alabama shad are able to successfully move downstream to
contribute to the adult stock. We also concluded that the conservation
locking was providing upstream migration to higher quality spawning and
juvenile rearing habitat, which has potentially improved recruitment
and led to population increases. At that time when conservation locking
occurred, the locks were operated twice a day to correspond with the
natural movement patterns of migrating fish during spawning seasons
(February through May). In addition, we also noted that the low
population estimates recorded from 2013-2015 were in part due to that
fact that conservation locking did not occur in 2013 and 2014, and thus
Alabama shad did not pass upstream during this period (unless they were
transported by researchers), resulting in the subsequent population
declines, thus indicating further that conservation locking is needed
to maintain the viability of this population.
The petitioner's state that NMFS relied too heavily on the positive
effects of conservation locking at the JWLD for the Alabama shad
population and that we incorrectly assumed that conservation locking
would continue into the foreseeable future. They present new
information indicating that conservation locking at the JWLD has
largely ceased and therefore Alabama shad are no longer able to access
upstream spawning habitat and return to their marine habitats post
spawning
[[Page 59887]]
(i.e., JWLD Lockage Logs 2017-2022). According to the petitioners, from
2017-2020, there were a total of 167 lock openings on the JWLD, none of
which were for fish passage or conservation locking (JWLD Lockage Log
2017-2020). From 2021-2022, records indicate that 14 lock openings took
place, none of which were intended for conservation locking or fish
passage (JWLD Lockage Log 2021-2022). We also found information in our
files that indicates that the locks at JWLD have not been opened for
conservation locking from 2017 to 2022, which is cause for concern.
While the locks are occasionally opened for vessel passage, those
openings are increasingly rare, as the locks are in disrepair. In
addition, the lockage logs (JWLD Lockage Log 2017-2022) show that the
locks have been opened during this time period to allow for vessel
passage; however, these events were sporadic (e.g., very few or none
occurred during spawning seasons) and limited in duration (e.g., almost
all were less than 45 minutes from open to close) suggesting that any
passive fish passage during migration has likely been severely
restricted.
The petitioners also assert that conservation locking regime and
spillways at the Claiborne and Millers Ferry Locks and Dam are not an
effective conservation strategy for Alabama shad (Cromwell 2022). The
Claiborne and Millers Ferry Locks and Dam is part of the Alabama-Coosa-
Tallapoosa River system and separates the Cahaba River from the Lower
Alabama River, Mobile Delta, and the Gulf of Mexico. In our previous
determination, we determined that conservation locking at Claiborne and
Millers Ferry Locks and Dam would likely provide access to spawning
habitat enhancing Alabama shad populations in the river system. The
petitioners reference a study that examined fish passage the Claiborne
and Millers Ferry Locks and Dams for the smallmouth buffalo,
paddlefish, and other migratory fish species (Mckee 2019). The author
found that migrating fish in general did not use the locks due to low
water levels and lack of attraction flow to encourage fish to move into
and exit lock chambers. In addition, they found that the crested
spillway is only submerged during flooding events and passage is
restricted to fish species that are considered strong swimmers (Mckee
2019; Cromwell 2022; Williams, pers. comm. November 14, 2023). The
petitioners and a referenced biologist claim passage at the spillway is
highly unlikely for Alabama shad because they are not strong swimmers
and are generally unable to use the spillways as passage (Aunins et al.
2013; Quinn, pers. comm. October 17, 2023).
The petitioners assert that oil spills, leaking wells, and oil
infrastructure pose a threat to the Alabama shad in the Gulf of Mexico.
The petitioner's include information on two of the largest spills known
to have occurred in the Gulf of Mexico, Deepwater Horizon (DWH) spill
that occurred in 2010 and Main Pass oil spill that occurred in 2023.
The petitioners included new information on the Main Pass oil spill
that released at least 1.1 million gallons into the Gulf of Mexico, the
second-largest oil spill after the DWH spill that released 134 million
gallons (Budryk 2023; NOAA 2023). The Main Pass oil spill occurred
offshore near the Mississippi Delta in the Gulf of Mexico in November
2023. Alabama shad occur in the Mississippi Delta, which serves as
their overwintering habitat before they make spring spawning runs
(Mickle et al. 2010; Smith et al. 2010). The petitioners and several
biologists indicate that Alabama shad were likely impacted by the Main
Pass oil spill as the species uses the Mississippi Delta as
overwintering habitat and the spill occurred while the species would
have been present (Quinn et al. 2023; Ingram. pers. comm. December 9,
2023; Sammons, pers. comm. December 13, 2023). The petitioners
summarize information related to the chronic adverse effects that oil
exposure can have on fish survival, growth, reproduction, as well as
disruptions or changes to migratory behavior (Fodrie and Heck 2011;
Snyder et al. 2015; NOAA 2014) inferring that Alabama shad would
experience similar impacts as a result of the Main Pass oil spill. In
addition, while the petitioners recognize that no studies have been
conducted on the direct effects to Alabama shad resulting from the DWH
oil spill, they claim that Alabama shad were likely impacted and have
not recovered since (Ingram. pers. comm. December 9, 2023). The
petitioners note that while Alabama shad were upriver when the spill
occurred, they were likely exposed upon their return to the marine
environment because their range overlaps with the area impacted by the
spill. To support their claim, the petitioner's reference personal
communications from biologists noting that Alabama shad collected in
the ACF River system after the DWH oil spill had lesions, and that
their progeny did not return from the Gulf of Mexico in subsequent
years (Ingram. pers. comm. December 9, 2023; Quinn et al. 2023). Our
previous finding determined that the cause of lesions were unexplained,
and while the lesions were observed in 2010, 2011, and 2013, no lesions
were observed on fish captured after 2013 (T. Ingram, Georgia DNR,
pers. comm. to K. Shotts, NMFS, June 6, 2016). Lastly, the petitioners
include descriptions of general threats (e.g., climate change,
dissolved oxygen, hurricanes, dredging, pollution, and conductivity) to
riverine and marine habitats and how they may affect Alabama shad
(Mettee et al. 1996; Robinson and Buchanan 2020; Rider et al. 2021).
In summary, the information provided in the petition and in our
files, indicates that conservation locking at the JWLD is no longer
occurring, which is likely prohibiting spawning migration of AFC
population of Alabama shad that we had previously indicated likely
contribute to the viability of the species as a whole because of its
large relative size and potential role in enhancing other river
populations through outmigration (82 FR 4022). Thus, the cessation of
conservation locking at the JWLD is especially concerning as the ACF
population is potentially important to the species overall viability.
Similarly, it also appears that the conservation locking system at the
Claiborne and Millers Ferry Locks and Dams is ineffective at passing
Alabama shad due to low water levels and lack of attraction flow. In
addition, while the crested spillway may be successful at passing other
fish species during flooding events, they do not appear to be effective
at passing Alabama shad. The petitioners also provide new information
suggesting that species may have been impacted by the Main Pass oil
spill while overwintering in the Mississippi Delta. While this
information is incomplete, it is cause for concern and warrants further
consideration in the status review report. Overall, the information
provided by the petitioners and briefly summarized here regarding
threats to the Alabama shad from habitat loss, degradation, and
modification leads us to conclude that listing the species as
threatened or endangered may be warranted.
Petition Finding
After reviewing the petition, the literature cited in the petition,
and other information readily available in our files, we find that
listing Alabama shad (A. alabamae) as a threatened or endangered
species may be warranted. Therefore, in accordance with section
4(b)(3)(A) of the ESA and NMFS' implementing regulations (50 CFR
424.14(h)(2)), we will commence a status review of this species. During
the status review, we will determine
[[Page 59888]]
whether Alabama shad is in danger of extinction (endangered) or likely
to become so in the foreseeable future (threatened) throughout all or a
significant portion of its range. As required by section 4(b)(3)(B) of
the ESA, within 12 months of the receipt of the petition (January 9,
2024), we will make a finding as to whether listing the Alabama shad as
an endangered or threatened species is warranted. If listing is
warranted, we will publish a proposed rule and solicit public comments
before developing and publishing a final rule.
Information Solicited
To ensure that the status review is based on the best available
scientific and commercial data, we are soliciting comments and
information from interested parties on the status of the Alabama shad.
Specifically, we are soliciting information in the following areas:
(1) Species abundance;
(2) species productivity;
(3) species distribution or population spatial structure;
(4) genetic connectivity of historical and contemporary
populations;
(5) habitat conditions and associated limiting factors and threats
for both the marine and freshwater environments;
(6) data concerning the status and trends of identified limiting
factors or threats;
(7) information concerning the impacts of environmental variability
and climate change on survival, recruitment, distribution, and/or
extinction risk;
(8) the adequacy of existing regulatory mechanisms and whether
protections are being implemented and are proving effective in
conserving the species;
(9) ongoing or planned efforts to protect and restore the species
and its habitat; and
(10) other new information, data, or corrections including, but not
limited to, identification of erroneous information in the previous
listing determination.
We request that all data and information be accompanied by
supporting documentation such as maps, bibliographic references, or
reprints of pertinent publications. Please send any comments in
accordance with the instructions provided in the ADDRESSES section
above. We will base our findings on a review of the best available
scientific and commercial data, including relevant information received
during the public comment period.
References Cited
A complete list of all references is available upon request from
the Protected Resources Division of the NMFS Southeast Regional Office
(see FOR FURTHER INFORMATION CONTACT).
Authority: The authority for this action is the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Dated: July 19, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2024-16253 Filed 7-23-24; 8:45 am]
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