26438 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AF56

Endangered and Threatened Wildlife

and Plants; Final Rule To List the

Alabama Sturgeon as Endangered

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the Fish and Wildlife

Service (Service), determine the

Alabama sturgeon (Scaphirhynchus

suttkusi) to be endangered under the

authority of the Endangered Species Act

of 1973, as amended (Act). The Alabama

sturgeon’s historic range once included

about 1,600 kilometers (km) (1,000

miles (mi)) of the Mobile River system

in Alabama (Black Warrior, Tombigbee,

Alabama, Coosa, Tallapoosa, Mobile,

Tensaw, and Cahaba Rivers) and

Mississippi (Tombigbee River). Since

1985, all confirmed captures have been

from a short, free-flowing reach of the

Alabama River below Millers Ferry and

Claiborne Locks and Dams in Clarke,

Monroe, and Wilcox Counties, Alabama.

The decline of the Alabama sturgeon is

attributed to over-fishing, loss and

fragmentation of habitat as a result of

historical navigation-related

development, and water quality

degradation. Current threats primarily

result from its reduced range and its

small population numbers. These

threats are compounded by a lack of

information on Alabama sturgeon

habitat and life history requirements.

This action extends the Act’s protection

to the Alabama sturgeon.

EFFECTIVE DATE: June 5, 2000.

ADDRESSES: The complete file for this

rule is available for inspection, by

appointment, during normal business

hours at the Mississippi Field Office,

U.S. Fish and Wildlife Service, 6578

Dogwood View Parkway, Jackson,

Mississippi 39213.

FOR FURTHER INFORMATION CONTACT: Paul

Hartfield at the above address

(telephone 601/321–1125; facsimile

601/965–4340).

SUPPLEMENTARY INFORMATION:

Background

The Alabama sturgeon

(Scaphirhynchus suttkusi) is a small,

freshwater sturgeon that was historically

found only in the Mobile River Basin of

Alabama and Mississippi. This sturgeon

is an elongate, slender fish growing to

about 80 centimeters (cm) (31 inches

(in)) in length. A mature fish weighs 1

to 2 kilograms (kg) (2 to 4 pounds (lb)).

The head is broad and flattened shovellike at the snout. The mouth is tubular

and protrusive. There are four barbels

(whisker-like appendages used to find

prey) on the bottom of the snout, in

front of the mouth. Bony plates cover

the head, back, and sides. The body

narrows abruptly to the rear, forming a

narrow stalk between the body and tail.

The upper lobe of the tail fin is

elongated and ends in a long filament.

Characters used to distinguish the

Alabama sturgeon from the closely

related shovelnose sturgeon

(Scaphirhynchus platorynchus) include

larger eyes, orange color, number of

dorsal plates, dorsal fin ray numbers,

and the absence of spines on the tip of

its snout and in front of its eyes.

The earliest specimens of Alabama

sturgeon in museum collections date

from about 1880. The first mention of

the fish in the scientific literature,

however, was not until 1955, when a

report of the collection of a single

specimen from the Tombigbee River was

published by Chermock. In 1976,

Ramsey referred to the Alabama

sturgeon as the Alabama shovelnose

sturgeon, noting that it probably was

distinct from the shovelnose sturgeon,

which is found in the Mississippi River

Basin and was also historically known

from the Rio Grande. In 1991, Williams

and Clemmer formally described the

species based on a statistical

comparison of relative sizes and

numbers of morphological structures of

Alabama and shovelnose sturgeons.

The methods used by Williams and

Clemmer (1991) to justify species

designation for the Alabama sturgeon

have been criticized in unpublished

manuscripts (e.g., Blanchard and

Bartolucci 1994, Howell et al. 1995) and

in one published paper (Mayden and

Kuhajda 1996). The criticisms included

identification of a variety of statistical

and methodological errors and

limitations (e.g., small sample size,

clinal variation (characteristics of a

species correlated with changing

ecological variables), allometric growth

(growth of parts of an organism at

different rates and at different times),

inappropriate statistical tests, and

others). Bartolucci et al. (1998), using

Bayesian Analysis statistical

methodology, found no significant

differences in multivariate means of

measurement data, taken from Williams

and Clemmer (1991).

Mayden and Kuhajda (1996)

reevaluated the morphological

distinctiveness of the Alabama sturgeon

using improved statistical tests and new

data derived from examination of

additional shovelnose sturgeon

specimens from a larger geographic area.

Mayden and Kuhajda (1996) identified

eight new diagnostic characters, found

little evidence of geographic clinal

variation in these diagnostic features,

and concluded that the Alabama

sturgeon was a distinct and valid

species.

Attempts to clarify taxonomic

relationships of the Alabama sturgeon to

other species of Scaphirhynchus using

DNA sequencing have met with limited

success. In an unpublished report,

Schill and Walker (1994) used tissue

samples from an Alabama sturgeon

collected in 1993 to compare the three

nominal Scaphirhynchus species. Based

on estimates of sequence divergence at

the mitochondrial cytochrome b locus,

Alabama, shovelnose, and pallid

sturgeons (S. albus) were

indistinguishable. However, other

studies have also found that the

cytochrome b locus was not useful for

discriminating among some congeneric

fish species that were otherwise

distinguished by accepted

morphological, behavioral, and other

characteristics (Campton et al. 1995).

In two unpublished reports for the

U.S. Army Corps of Engineers (Corps)

and us by Genetic Analyses, Inc. (1994,

1995), nuclear DNA fragments were

compared among the three

Scaphirhynchus species. The three

Alabama sturgeon specimens examined

were genetically divergent from pallid

and shovelnose sturgeons, while there

were no observed differences of DNA

fragments between the pallid and

shovelnose sturgeons. However, the

1995 study also found that two of the

Alabama sturgeon differed substantially

from the third, noted the small number

of samples of Alabama sturgeon, and

recommended additional studies to

examine genetic diversity within the

Alabama sturgeon population.

A comparative study of the

mitochondrial DNA (mtDNA) d-loop of

Scaphirhynchus species by Campton et

al. (1995) provided genetic data

consistent with the taxonomic

distinction of the Alabama sturgeon

from the shovelnose sturgeon. The dloop is considered to be a rapidly

evolving part of the genome. Campton et

al. (1995) found that haplotype (genetic

markers) frequencies of the d-loop from

the three Scaphirhynchus species were

significantly different, with the Alabama

sturgeon having a unique haplotype.

However, the relative genetic

differences among the three species

were small, suggesting that the rate of

genetic change in the genus is relatively

slow and/or they have only recently

diverged. The genetic similarity

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26439

between the pallid and shovelnose

sturgeon has been suggested to be due

to interbreeding that has recently

occurred as a result of niche overlap

resulting from widespread habitat losses

(Carlson et al. 1985, Keenlyne et al.

1994).

During open comment periods for the

proposed rule, we received several

reports and letters containing new data

from mtDNA analysis of

Scaphirhynchus. Both Campton et al.

(1999) and Mayden et al. (1999)

identified a haplotype common to the

three Alabama sturgeon sampled that

was not observed in a much larger

sample (>70) of pallid and shovelnose

sturgeons. Wells (in litt. 1999) also

conducted mtDNA analysis on eight

shovelnose sturgeon and identified

several new haplotypes not found in

previous studies. He did not find the

haplotype unique to Alabama sturgeon

in these shovelnose sturgeon. Fain et al.

(2000) found that the mitochondrial

cytochrome b gene was not useful to

distinguish species within

Scaphirhynchus or two other species

groups within the sturgeon genus

Acipenser. Campton et al. (in press)

submitted a peer-reviewed report

supporting species recognition of all

three species within Scaphirhynchus,

based on current morphological,

biogeographic, and molecular genetic

evidence.

We acknowledge that there is some

disagreement concerning the Alabama

sturgeon’s taxonomic status. However,

the description of the Alabama sturgeon

(Scaphirhynchus suttkusi) complies

with the rules of the International Code

of Zoological Nomenclature (§ 17.11(b)).

Recognition of Alabama sturgeon as a

species (Williams and Clemmer 1991) is

supported by Mayden and Kuhajda

(1996), as well as by several recent

unpublished genetic studies (Campton

et al. 1995, 1999, in press; Genetic

Analyses, Inc. 1994, 1995; Mayden et al.

1999). Furthermore, the Alabama

sturgeon is nationally and

internationally recognized as a valid

species (see response to Issue 2’’), and

will continue to be so recognized unless

overturned at some future date by the

scientific community through the formal

peer review and publication process.

Very little is known of the life history,

habitat, or other ecological requirements

of the Alabama sturgeon. Observations

by Burke and Ramsey (1985) indicate

the species prefers relatively stable

gravel and sand substrates in flowing

river channels. Verified captures of

Alabama sturgeon have primarily

occurred in large channels of big rivers;

however, at least two historic records

were from oxbow lakes (Williams and

Clemmer 1991). Examination of stomach

contents of museum and captured

specimens show that these sturgeon are

opportunistic bottom feeders, preying

primarily on aquatic insect larvae

(Mayden and Kuhajda 1996). Mayden

and Kuhajda (1996) deduced other

aspects of Alabama sturgeon life history

by a review of spawning habits of its

better known congener (a species that is

a member of the same genus), the

shovelnose sturgeon. Life history of the

shovelnose sturgeon has also been

recently summarized by Keenlyne

(1997). These data indicate that

Alabama sturgeon are likely to migrate

upstream during late winter and spring

to spawn. Downstream migrations may

occur to search for feeding areas and/or

deeper, cooler waters during the

summer. Eggs are probably deposited on

hard bottom substrates such as bedrock,

armored gravel, or channel training

works in deep water habitats, and

possibly in tributaries to major rivers.

The eggs are adhesive and require

current for proper development.

Sturgeon larvae are planktonic, drifting

with river currents, with postlarval

stages eventually settling out to the river

bottom. Sexual maturity is believed to

occur at 5 to 7 years of age. Spawning

frequency of both sexes is influenced by

food supply and fish condition, and

may occur every 1 to 3 years. Alabama

sturgeon may live up to 15 or more

years of age.

The Alabama sturgeon’s historic range

consisted of about 1,600 km (1,000 mi)

of river habitat in the Mobile River

Basin in Alabama and Mississippi.

There are records of sturgeon captures

from the Black Warrior, Tombigbee,

Alabama, Coosa, Tallapoosa, Mobile,

Tensaw, and Cahaba Rivers (Burke and

Ramsey 1985, 1995). The Alabama

sturgeon was once common in Alabama,

and perhaps also in Mississippi. The

total 1898 commercial catch of shovelnose sturgeons (i.e., Alabama sturgeon)

from Alabama was reported as 19,000 kg

(42,000 lb) in a statistical report to

Congress (U.S. Commission of Fish and

Fisheries 1898). Of this total, 18,000 kg

(39,800 lb) came from the Alabama

River and 1,000 kg (2,200 lb) from the

Black Warrior River. Given that an

average Alabama sturgeon weighs about

1 kg (2 lb), the 1898 commercial catch

consisted of approximately 20,000 fish.

These records indicate a substantial

historic population of Alabama

sturgeon.

Between the 1898 report and 1970,

little information was published

regarding the Alabama sturgeon. An

anonymous article published in the

Alabama Game and Fish News in 1930

stated that the sturgeon was not

uncommon; however, by the 1970s, it

had become rare. In 1976, Ramsey

considered the sturgeon as endangered

and documented only six specimens

from museums. Clemmer (1983) was

able to locate 23 Alabama sturgeon

specimens in museum collections, with

the most recent collection dated 1977.

Clemmer also found that commercial

fishermen in the Alabama and

Tombigbee Rivers were familiar with

the sturgeon, calling it hackleback,

buglemouth trout, or devilfish.

During the mid-1980s, Burke and

Ramsey (1985, 1995) conducted a status

survey to determine the distribution and

abundance of the Alabama sturgeon.

Interviews were conducted with

commercial fishermen on the Alabama

and Cahaba Rivers, some of whom

reported catch of Alabama sturgeon as

an annual event. However, with the

assistance of commercial fishermen,

Burke and Ramsey were able to collect

only five Alabama sturgeons, including

two males, two gravid females, and one

juvenile about 2 years old. Burke and

Ramsey (1985) concluded that the

Alabama sturgeon had been extirpated

from 57 percent (950 km or 589 mi) of

its range and that only 15 percent (250

km or 155 mi) of its former habitat had

the potential to support a good

population. An additional sturgeon was

taken in 1985 in the Tensaw River and

photographed, but the specimen was

lost (Mettee, Geologic Survey of

Alabama, pers. comm. 1997).

In 1990 and 1992, biologists from the

Alabama Department of Conservation

and Natural Resources (ADCNR), with

the assistance of the Corps, conducted

searches for Alabama sturgeon using a

variety of sampling techniques, without

success (Tucker and Johnson 1991,

1992). However, some commercial and

sports fishermen continued to report

recent catches of small sturgeon in

Millers Ferry and Claiborne Reservoirs

and in the lower Alabama River (Tucker

and Johnson 1991, 1992).

In 1993, our biologists and the

ADCNR conducted another extensive

survey for Alabama sturgeon in the

lower Alabama River. On December 2,

1993, a mature male was captured alive

in a gill net downstream of Claiborne

Lock and Dam, at river mile 58.8 in

Monroe County, Alabama (Parauka, U.S.

Fish and Wildlife Service, pers. comm.

1995). This specimen represented the

first confirmed record of Alabama

sturgeon in about 9 years. This fish was

moved to a hatchery where it later died.

On April 18, 1995, an Alabama

sturgeon captured by fishermen below

Claiborne Lock and Dam was turned

over to ADCNR and Service biologists.

This fish was carefully examined, radioVerDate 27<APR>2000 16:18 May 04, 2000 Jkt 190000 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\05MYR2.SGM pfrm02 PsN: 05MYR2
26440 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

tagged, and returned to the river where

it was tracked for 4 days before the

transmitter switched off (Parauka, pers.

comm. 1995). In June 1995, it was

determined that the tag had dislodged.

On May 19, 1995, our biologists took

another Alabama sturgeon in Monroe

County, Alabama, near the 1993

collection site. Unfortunately, shortly

after the fish was tagged and released,

it was found entangled and dead in a

vandalized gill net lying on the river

bottom (Parauka, pers. comm. 1995). On

April 26, 1996, a commercial fisherman

caught, photographed, and released an

Alabama sturgeon (estimated at about 51

to 58 cm (20 to 23 in) total length and

1 kg (2 lb) weight) in the Alabama River,

5 km (3 mi) downstream of Millers Ferry

Lock and Dam (Reeves, ADCNR, pers.

comm. 1996).

Due to the historic decline, lack of

collection success, and the apparent

rarity of the sturgeon, members of the

Mobile River Basin Recovery Coalition

began discussions in the spring of 1996

to develop and implement a

conservation plan for the Alabama

sturgeon that could receive wide

support. A draft plan was subsequently

endorsed in 1997 by the ADCNR,

Mobile District Corps, representatives of

the Alabama-Tombigbee Rivers

Coalition, and us (1997 Conservation

Plan). This Plan identified the need to

develop life history information through

capture, tagging, and telemetry; capture

of broodstock for breeding and potential

population augmentation; construction

of hatchery facilities for sturgeon

propagation; and habitat identification

and quantification in the lower Alabama

River (see discussion of 1997

Conservation Plan under State

Conservation Efforts section).

In March 1997, the ADCNR

implemented the collection component

of the 1997 Conservation Plan. The

Geological Survey of Alabama, Corps,

Waterways Experiment Station,

Alabama Power Company, and the

Service also participated in the effort.

Up to four crews were on the river at

any one time using gill nets and trot

lines. Most of the effort focused on the

lower Alabama River where recent

previous captures had been made.

Personnel from the ADCNR caught one

small sturgeon (1 kg (2 lb) weight) on

April 9, 1997, immediately below

Claiborne Lock and Dam.

The ADCNR continued fishing for

sturgeon through the fall and winter and

collected another sturgeon downstream

of Millers Ferry Lock and Dam on

December 10, 1997. This fish was also

transported to the Marion Fish

Hatchery, where both fish were held for

potential use as broodstock. In January

1998, the two fish were biopsied to

determine their sex. The April specimen

was found to be a mature female with

immature eggs, whereas the December

fish was a mature male.

Alabama broodstock collection efforts

in 1998 resulted in the capture of a

single fish on November 12, 1998. A

biopsy performed in December found

the specimen to be a reproductively

inactive male. The two 1997 fish were

also biopsied at this time, and were

determined to be candidates for

propagation in the spring of 1999.

On March 27, 1999, the mature male

and female sturgeon captured during

1997 were induced to spawn. The

female produced about 4,000 mature

eggs; however, the male failed to

produce sperm, and the fertilization

attempt was unsuccessful. On April 4,

1999, the captive female died from a

bacterial infection that was apparently

aggravated by spawning stress. Another

sturgeon was captured on April 14,

1999, by commercial fishermen

downstream of Claiborne Lock and

Dam, delivered to ADCNR fisheries

biologists, and transported to the

Marion State Hatchery. This sturgeon

died at the hatchery in February 2000,

following a biopsy that identified it as

a female. Another Alabama sturgeon

captured on August 18, 1999, in the

Claiborne Pool also died at the hatchery

shortly after transport. To date, more

than 4,000 man-hours of fishing effort

by professional fisheries biologists over

the past 3 years has resulted in the

capture of five fish, three of which have

died in captivity.

The chronology of commercial

harvest, scientific collections, and

incidental catches by commercial and

sport fishermen demonstrate a

significant decline in both the

population size and range of the

Alabama sturgeon in the past 100 years.

Historically, the fish occurred in

commercial abundance and was found

in all major coastal plain tributaries of

the Mobile River system. The Alabama

sturgeon has apparently disappeared

from the upper Tombigbee, lower Black

Warrior, lower Tallapoosa, and upper

Cahaba, where it was last reported in

the 1960s; the lower Coosa, last reported

around 1970; the lower Tombigbee, last

reported around 1975; and lower

Cahaba, last reported in 1985 (Clemmer

1983; Burke and Ramsey 1985, 1995;

Williams and Clemmer 1991; Mayden

and Kuhajda 1996). The fish is known

from a single 1985 record in the MobileTensaw Delta; however, no incidental

catches by commercial or recreational

fishermen have been reported since that

time. Recent collection efforts indicate

that very low numbers of Alabama

sturgeon continue to survive in portions

of the 216-km (134-mi) length of the

Alabama River channel below Millers

Ferry Lock and Dam, downstream to the

mouth of the Tombigbee River.

The historic population decline of the

Alabama sturgeon was probably

initiated by unrestricted harvesting near

the turn of the century. Although there

are no reports of commercial harvests of

Alabama sturgeon after the 1898 report,

it is likely that sturgeon continued to be

affected by the commercial fishery.

Keenlyne (1997) noted that in the early

years of the 20th century, shovelnose

sturgeon were considered a nuisance to

commercial fishermen and were

destroyed when caught. Interviews with

commercial and recreational fishermen

along the Alabama River indicate that

Alabama sturgeon continued to be taken

into the 1980s (Burke and Ramsey

1985). Studies of other sturgeon species

suggest that newly exploited sturgeon

fisheries typically show an initial high

yield, followed by rapid declines. With

continued exploitation and habitat loss

little or no subsequent recovery may

occur, even after nearly a century

(National Paddlefish and Sturgeon

Steering Committee 1993, Birstein

1993).

Although unrestricted commercial

harvesting of the Alabama sturgeon may

have significantly reduced its numbers

and initiated a population decline, the

present curtailment of the Alabama

sturgeon’s range is the result of 100

years of cumulative impacts to the rivers

of the Mobile River Basin (Basin) as they

were developed for navigation,

especially during the last 50 years.

Navigation development of the Basin

affected the sturgeon in major ways.

This development significantly changed

and modified extensive portions of river

channel habitats, blocked long-distant

movements, including migrations, and

fragmented and isolated sturgeon

populations.

The Basin’s major rivers are now

controlled by more than 30 locks and/

or dams, forming a series of lakes that

are interspersed with short, free-flowing

reaches. Within the sturgeon’s historic

range, there are three dams on the

Alabama River (built between 1968 and

1971); the Black Warrior has two

(completed by 1959); and the

Tombigbee has six (built between 1954

and 1979). These 11 dams affect and

fragment 970 km (583 mi) of river

channel habitat. Riverine (flowing

water) habitats are required by the

Alabama sturgeon to successfully

complete its life cycle. Alabama

sturgeon habitat requirements are not

met in impoundments, where weak

flows result in accumulations of silt

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26441

making bottom habitats unsuitable for

spawning, larval and postlarval

development, and, perhaps, for the

bottom-dwelling invertebrates on which

the sturgeon feed.

Prior to widespread construction of

locks and dams throughout the Basin,

Alabama sturgeon could move freely

between feeding areas, and from feeding

areas to sites that favored spawning and

development of eggs and larvae.

Additionally, the sturgeon may have

sought thermal refuges during summer

months, when high water temperatures

became stressful. Such movements

might have been extensive, since other

Scaphirhynchus species of sturgeons are

known to make long-distance

movements exceeding 250 km (155 mi)

(Moos 1978, Bramblett 1996). Locks and

dams, however, fragmented the

sturgeons’ range, forming isolated

subpopulations between the dams

where all the species’ habitat needs

were not necessarily met. With avenues

of movement and migration restricted,

these subpopulations also became more

vulnerable to local declines in water

and habitat quality caused by riverine

and land management practices and/or

polluting discharges. With access

restricted by dams, habitat

fragmentation also precluded

recolonization of areas when

subpopulations became extirpated.

Most of the major rivers within the

historic range of the Alabama sturgeon

have also been dredged and/or

channelized to make them navigable.

For example, the 740-km (459-mi) long

Warrior-Tombigbee Waterway channel

was originally dredged to 45 meters (m)

by 2 m (148 feet (ft) by 7 ft) and later

to 61 m by 3 m (200 ft by 10 ft). The

lower Alabama and Tombigbee Rivers

are routinely dredged in areas of natural

deposition to maintain navigation

depths. Dredged and channelized river

reaches, in comparison to natural river

reaches, have reduced habitat diversity

(e.g., loss of shoals, removal of snags,

removal of bendways, reduction in flow

heterogeneity, etc.), which results in

decreased aquatic diversity and

productivity (Hubbard et al. 1988 and

references therein). The deepening and

destruction of shoals and shallow runs

or other historic feeding and spawning

sites as a result of navigation

development likely contributed to local

and overall historic declines in range

and abundance of the Alabama

sturgeon.

Dams constructed for navigation and

power production also affected the

quantity and timing of water moving

through the Basin. Water depths for

navigation are controlled through

discharges from upstream dams, and

flows have also been changed as a result

of hydroelectric production by upstream

dams (Buckley 1995; Freeman and

Irwin, U.S. Geological Survey, pers.

comm. 1997).

The construction and operation of

dams and development of navigation

channels were significant factors in

curtailment of the historic range of the

Alabama sturgeon and in defining its

current distribution. While these

structures and activities are likely to

continue to influence the environment

(habitat) and its use by this species and

others, the present effects of the

operation of existing structures, flow

regulation, and navigation maintenance

activities on the sturgeon are poorly

understood, in large part due to lack of

specific information on the behavior

and ecology of the Alabama sturgeon.

In 1994, we conducted an impact

analysis with the Corps on potential

effects of channel maintenance and

other Federal actions in the Alabama

River on the Alabama sturgeon. The

analysis was summarized in a White

Paper by Biggins (1994) (see text of the

White Paper below). Based on limited

information on the Alabama sturgeon

and studies of the shovelnose sturgeon

in the Mississippi River system, the

White Paper noted that Alabama

sturgeon appear to require strong

currents in deep waters over relatively

stable substrates for feeding and

spawning, and they are not generally

associated with the unconsolidated

substrates that settle in slower current

areas. Channel maintenance is primarily

associated with specific shallow areas

with unconsolidated substrates and

produces small, localized, and

temporary elevations of turbidity. Based

on 1994 information, the White Paper

concluded that the annual maintenance

dredging program in the Alabama and

lower Tombigbee Rivers does not

adversely affect the Alabama sturgeon.

Recent studies have also supported the

conclusions of the White Paper (see

discussion of maintenance dredging

under Factor A). The White Paper in its

entirety is at the end of this final rule.

In summary, the Alabama sturgeon

has undergone marked declines in

population size and range during the

past century. Over-fishing and historical

navigation development were

significant factors in the sturgeon’s

decline. The Alabama sturgeon

currently inhabits only about 15 percent

of its historic range, and the species is

known to survive only in the Alabama

River channel below Millers Ferry Lock

and Dam, downstream to the mouth of

the Tombigbee River.

Previous Federal Actions

We included the Alabama sturgeon in

Federal Register Notices of Review for

candidate animals in 1982, 1985, 1989,

and 1991. In the 1982 and 1985 notices

(47 FR 58454 and 50 FR 37958), this fish

was included as a category 2 species (a

species for which we had data

indicating that listing was possibly

appropriate, but for which we lacked

substantial data on biological

vulnerability and threats to support a

proposed rule; we discontinued

designation of category 2 species in the

February 28, 1996, Notice of Review (61

FR 7956)). In the 1989 and 1991 notices

(54 FR 554 and 56 FR 58816), the

Alabama sturgeon was listed as a

category 1 candidate species (a species

for which we have on file sufficient

information on biological vulnerability

and threats to support issuance of a

proposed rule).

On June 15, 1993, we published a

proposed rule to list the Alabama

sturgeon as endangered with critical

habitat (58 FR 33148). On July 27, 1993,

we published a notice scheduling a

public hearing on the proposed rule (58

FR 40109). We published a notice on

August 24, 1993 (58 FR 44643),

canceling and rescheduling the hearing.

On September 13, 1993 (58 FR 47851),

we published a notice rescheduling the

public hearing for October 4, 1993, and

extending the comment period to

October 13, 1993. We held the October

4 public hearing on the campus of

Mobile College, Mobile, Alabama. On

October 25, 1993 (58 FR 55036), we

published a notice announcing a second

public hearing date, reopening the

comment period, and stating the

availability of a panel report. This

second public hearing was canceled in

response to a preliminary injunction

issued on November 9, 1993.

On January 4, 1994 (59 FR 288), we

published a notice rescheduling the

second public hearing and extending

the comment period. However, this

hearing was subsequently rescheduled

in a January 7, 1994, notice (59 FR 997).

We held the second public hearing on

January 31, 1994, at the Montgomery

Civic Center, Montgomery, Alabama.

We published a 6-month extension of

the deadline and reopening of the

comment period for the proposed rule to

list the Alabama sturgeon with critical

habitat on June 21, 1994 (59 FR 31970).

On September 15, 1994 (59 FR 47294),

we published another notice that further

extended the comment period and

sought additional comments on only the

scientific point of whether the Alabama

sturgeon still existed. We withdrew the

proposed rule on December 15, 1994 (59

26442 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

FR 64794), on the basis of insufficient

information that the Alabama sturgeon

continued to exist.

On September 19, 1997, after capture

of several individuals confirming that

the species was extant, we included the

Alabama sturgeon in the candidate

species Notice of Review (62 FR 49403).

On March 26, 1999, we published a

proposed rule to list the Alabama

sturgeon as endangered, without critical

habitat (64 FR 14676). We invited the

public and State and Federal agencies to

comment on the proposed listing; the

comment period was open through May

26, 1999. On May 25, 1999, we

published a notice announcing a June

24 public hearing on the proposal at the

Montgomery Civic Center and an

extension of the comment period

through July 5, 1999 (64 FR 28142). To

allow time for additional public

comments, we reopened the comment

period on July 12, 1999, through

September 10, 1999 (64 FR 37492).

On January 11, 2000, we reopened the

comment period (65 FR 1583), to make

available for comment a 1999 study

‘‘The Development of a DNA Procedure

for the Forensic Identification of Caviar’’

(Fain et al. 1999). On February 7, 2000

(65 FR 5848), we withdrew

consideration of this study from the

decision making process. For clarity and

ease of understanding, we replaced it

with a report containing information

relevant to the Alabama sturgeon listing

process (Fain et al. 2000). We accepted

comments on this report through March

8, 2000.

We reopened the comment period

again on February 16, 2000 (65 FR

7817), to announce the availability of

and obtain comments on a Conservation

Agreement and Strategy (Conservation

Agreement Strategy) for the Alabama

Sturgeon signed by the ADCNR, the

Corps, the Alabama-Tombigbee Rivers

Coalition, and us on February 9, 2000.

We accepted comments on the

Conservation Agreement Strategy and

its relevance and significance to the

listing decision until March 17, 2000.

We published Listing Priority

Guidance for Fiscal Year 2000 in the

Federal Register on October 22, 1999

(64 FR 57114). That guidance clarifies

the order in which we will process

rulemakings. Highest priority is

processing emergency listing rules for

any species determined to face a

significant and imminent risk to its

well-being (Priority 1). Second priority

(Priority 2) is processing final

determinations on proposed additions

to the lists of endangered and

threatened wildlife and plants. Third

priority is processing new proposals to

add species to the lists. The processing

of administrative petition findings

(petitions filed under section 4 of the

Act) is the fourth priority. This final

rule is a Priority 2 action and is being

completed in accordance with the

current Listing Priority Guidance.

Summary of Comments and

Recommendations

We have reviewed all written and oral

comments received during the comment

periods and have incorporated

information updating the available data

into the appropriate sections of this

rule. We have organized substantive

comments concerning the proposed

rule, Fain et al. 2000, and the

Conservation Agreement Strategy into

specific issues, which may be

paraphrased. We grouped comments of

a similar nature or subject matter into a

number of broader issues. These issues

and our response to each are

summarized in the three subsections

below.

Proposed Rule

In the March 26, 1999, proposed rule

(64 FR 14676), we requested all

interested parties to submit factual

reports or information that might

contribute to the development of a final

rule. We sent direct notification of the

proposal to 192 institutions and

individuals, including Federal and State

agencies, county governments, scientific

organizations, and interested parties.

We published legal notices announcing

the proposal and inviting public

comment on April 18, 1999, in the

Montgomery Advertiser, Montgomery,

Alabama; and the Mobile Press-Register,

Mobile, Alabama. The comment period

closed on May 26, 1999. On May 6,

1999, we received a request for a public

hearing from the Alabama-Tombigbee

Rivers Coalition. We published a notice

on May 25, 1999 (64 FR 28142),

scheduling the public hearing and

extending the comment period through

July 5, 1999. We sent direct notification

of the hearing and comment period

extension to Federal and State agencies,

county governments, scientific

organizations, and other interested

parties. Legal notices announcing the

public hearing and comment period

extension were published on June 20,

1999, in the Montgomery Advertiser,

Montgomery, Alabama; and the Mobile

Press-Register, Mobile, Alabama. We

held the public hearing at the

Montgomery Civic Center, Montgomery,

Alabama, on June 24, 1999, with

approximately 1,000 people in

attendance. We received oral comments

from 78 individuals; of these, 66

expressed opposition to the listing, 3

supported the action, and 10 did not

specifically state their position on the

listing. Because of widespread concern

over the proposed action, we reopened

the comment period on July 12, 1999

(64 FR 37492), through September 10,

1999.

During the comment periods, we

received approximately 4,000 cards,

letters, and reports concerning the

proposal. Most expressed opposition to,

or concern about the proposed listing;

however, a number of individuals

supported the action. Opposition to the

proposed listing primarily centered on

perceived economic effects of the

action, questions about taxonomy and

science, and the adequacy of current

State conservation actions to protect the

sturgeon. We received comments from

four Federal agencies and seven State

agencies. The remaining comments were

from individuals or representatives of

organizations or groups. The Governor

of Alabama and the ADCNR stated that

existing State protection and recovery

efforts are adequate, and opposed the

listing. We convened a team of Service

experts to review the issues raised,

including issues of taxonomy and

genetics, during the comment period for

the Alabama sturgeon proposed rule and

to ensure they were fully and correctly

addressed prior to preparation of our

final decision document on this species.

Below are issues raised in these

comments relating to this action and our

responses to each.

Issue 1: The proposed listing was not

based on the best scientific and

commercial data available, as required

by section 4(b)(1) of the Act. The

literature cited to support the proposed

rule was either not applicable,

erroneous, incomplete, misinterpreted,

or simply wrong.

Response: We thoroughly reviewed all

scientific and commercial data in our

possession in preparing the proposed

rule. We sought and reviewed historic

and recent publications and

unpublished reports concerning the

Alabama sturgeon, closely related

species, and sturgeon literature in

general, as well as literature and reports

on human impacts to river systems and

resulting responses in faunal

composition and channel habitat

integrity. Not all literature or reports

reviewed were cited; however, the

appropriate literature was cited to

document the text in the proposal. We

used our best professional judgment

and, while we considered all of the

information, we relied upon data and

documents which in our professional

opinion are the best scientific and

commercial data and the most reliable.

Issue 2: The Service does not have

sufficient scientific information to

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26443

conclude that the Alabama sturgeon is

a distinct species from the common

shovelnose sturgeon.

Response: The Alabama sturgeon is

nationally and internationally

considered a valid species. The

Alabama sturgeon was initially

described as a distinct species in a peerreviewed, widely distributed museum

periodical (Williams and Clemmer

1991). The species was considered valid

in a catalog of fishes of Alabama

(Boschung 1992) and in a catalog of

fishes of North America (Mayden et al.

1992). Species status was reassessed,

reaffirmed, and published in the

ichthyological journal Copeia (Mayden

and Kuhajda 1996). The Alabama

sturgeon is listed as a separate species

in State fish books for Alabama (Mettee

et al. 1996) and Mississippi (Ross and

Brenneman in press). The Alabama

sturgeon is listed as a valid species in

a catalog of fishes of the world

(Eshmeyer 1998). Birstein et al. (1997)

included the Alabama sturgeon in a list

of all sturgeon species of the world. The

Alabama sturgeon is considered a

distinct and valid species by the

American Society of Ichthyologists and

Herpetologists (1995, 1999 in litt.), and

by the Southern Fishes Council

Technical Advisory Committee (Warren

et al. in prep.). Thus, the Alabama

sturgeon is currently recognized as a

valid taxonomic species and will

continue to be so recognized unless

overturned at some future date by the

scientific community through the formal

publication and peer review process.

Issue 3: The Service should conduct

comprehensive taxonomic and life

history studies of the genus

Scaphirhynchus on a river system by

river system basis prior to listing.

Response: While having

comprehensive knowledge of a species

and its near relatives throughout their

geographic ranges prior to listing would

be ideal, it is seldom, if ever, possible.

Resolution of all aspects of taxonomy

and life history for this genus could take

years, perhaps decades. The Act

requires us to use the best available

information to determine the status of a

species, subspecies, or vertebrate

population. The available information

clearly indicates that the Alabama

sturgeon is in danger of extinction.

Resolving unpublished taxonomic

dissent prior to a proposal or final

decision is not required. The threat

assessment that currently applies to the

Alabama sturgeon as a taxonomic

species would apply equally to a

subspecies or distinct population

segment.

Issue 4: The Service has failed to

clearly indicate which reports or studies

they consider to be the best available

scientific and commercial data.

Response: The list of literature cited

in the proposal indicates which reports

and studies we consider to be the best

available scientific and commercial

data. We have reviewed all information

currently available to us in assessing the

status of the Alabama sturgeon. A list of

the literature cited in the proposal is

available upon request, as noted in the

proposed and final rules, and was

provided to interested parties during the

open comment period. We also allowed

interested parties access to review our

files and administrative record on two

occasions. In conducting our analysis,

we noted opposing views available to us

on taxonomy; genetics; distribution and

abundance; life history; historic,

present, and future threats; and

vulnerability to extinction. We

evaluated all information with regard to

its applicability to the determination of

species status under the Act and

acceptance by the scientific community.

Issue 5: The Service was provided,

and has ignored, information

discrediting species status for the

Alabama sturgeon. Only 4 of 17

scientific reports, documents, and

statements provided to the Service in

1993 and 1994 that opposed listing the

Alabama sturgeon as a distinct species

at that time, were cited in the 1999

proposed rule. The Service has ignored

all opposing scientific documents,

except a few.

Response: We reviewed the

information received in 1993 and 1994

that criticized the taxonomy of the

Alabama sturgeon prior to preparing the

March 26, 1999, proposed rule. The

views expressed in the documents were

generally summarized in the proposed

rule, and several were cited as

examples. In proposed and final rules,

as well as in most scientific documents,

only references used to document or

clarify statements are explicitly cited.

The reports referenced by commenters

that were not cited in the proposal

criticized the original description of the

Alabama sturgeon (Williams and

Clemmer 1991) and expressed

alternative views of its taxonomic

status. We reviewed these documents

and have not ignored their views;

however, only one taxonomic treatment

of the species (Mayden and Kuhajda

1996) has been published in the 9 years

since the fish was first described. It

supersedes the original description and

postdates the unpublished accounts

referenced that disputed taxonomic

validity. Mayden and Kuhajda (1996)

scientifically documented species

recognition of the Alabama sturgeon.

Several national and internationally

available articles have also been

published since 1994 that recognize the

taxonomic validity of the species (see

response to Issue 2). Absent publication

of alternative or differing taxonomic

data and conclusions through the peer

review scientific process, the species

will continue to be recognized as

Scaphirhynchus suttkusi by the

taxonomic community at large.

Issue 6: No scientists have directly

challenged any of the scientific data or

conclusions of the dozen scientists who

question the taxonomy of the Alabama

sturgeon.

Response: With the one, limited

exception discussed below, none of the

data and conclusions of the scientists

who question the taxonomy of the

Alabama sturgeon have been made

available for review by the scientific

ichthyological community through the

accepted process of peer review and

publication. Only a single peerreviewed paper has been published that

questions the taxonomy of the Alabama

sturgeon (Bartolucci et al. 1998).

However, that publication was a

methods paper concerning a statistical

approach to compare the significance of

morphological characters. It was

published in a statistically oriented

journal and not in a zoological,

ichthyological, or systematics journal,

and it made no attempt to formally

revise the taxonomy of the Alabama

sturgeon. We received letters from

ichthyologists during the comment

period pointing out shortcomings of

Bartolucci et. al (1998) for taxonomic

purposes. In a review of the systematics

and taxonomy of the Alabama sturgeon,

Mayden and Kuhajda (1996) presented

new data, addressed many of the

criticisms of the original description,

and substantiated species status for the

Alabama sturgeon.

Issue 7: The Service did not list the

references that were cited in the

proposed rule.

Response: In order to save publication

space and expense, it is common

practice not to include the references

cited in the published proposal. The

proposed rule clearly noted that a

complete list of references was available

upon request. We have provided copies

of references to all who have requested

them.

Issue 8: Some of the literature cited

for scientific background was criticized

as outdated and superseded by later

reports. Other studies were said to be

irrelevant to the status of the sturgeon

because they did not directly address

the Alabama sturgeon.

Response: We disagree with the

assessment that the literature cited in

the proposed rule is outdated and

26444 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

superseded by later reports. Historic

status reviews and surveys were cited,

along with more recent studies (see

Background section), to document

efforts to determine the status of the

species over a period of two decades.

Review of studies on closely related and

better known sturgeons provides

virtually the only insight to the life

history, ecology, and vulnerability of the

Alabama sturgeon. It is common and

accepted practice in science to deduce

the needs and vulnerability of poorly

known, rare species, or those that are

difficult to study, by using information

from more common and better known,

related species. It is also common in

science to use surrogate species to

deduce effects of environmental changes

on another species with appropriate

caveats that recognize known

similarities and differences. For

example, it is a common practice in the

biomedical sciences to use experimental

studies of laboratory mice to infer the

potential carcinogenic effects of

environmental contaminants and to

evaluate the physiological effects of new

drug treatments before they are ever

tested on humans.

Issue 9: The Service still claims that

the 1991 description of the Alabama

sturgeon, discredited by several

scientists, is the best available

information on the fish.

Response: We recognize errors in the

original description (Williams and

Clemmer 1991) that have been brought

to our attention since 1993.

Furthermore, we explicitly reference a

rigorous taxonomic and systematic

evaluation published in the journal

Copeia (Mayden and Kuhajda 1996) that

firmly establishes the species name, and

the species name is widely used in peerreviewed publications. In keeping with

accepted practices in scientific

nomenclature and regardless of errors in

the original description, the Williams

and Clemmer (1991) article will

continue to be recognized by the

ichthyological professional community

as the source of the name

Scaphirhynchus suttkusi as long as the

taxonomy is considered valid (see also

response to Issue 16’’). As noted in our

response to Issue 2,’’ the Alabama

sturgeon is currently and widely

recognized in published literature as a

valid taxonomic species.

Issue 10: Certain information

presented in the proposal regarding the

sturgeon’s habitat needs, reproductive

cycles, and life history requirements is

without basis in fact or science.

Response: We have used the best

available information for assessing the

sturgeon’s biological needs. This

information has been in the form of

peer-reviewed literature and

professional scientific reports. The

Alabama sturgeon’s habitat needs,

reproductive cycles and life history

requirements are not completely known.

For those areas where there is

insufficient or no information we have

utilized information garnered from peerreviewed scientific studies of the closely

related pallid sturgeon and shovelnose

sturgeon (see response to Issue 8’’).

Issue 11: Scientific disagreement with

the 1991 Williams and Clemmer

description constitutes substantial

disagreement among recognized experts.

Response: Taxonomic disagreements

are not uncommon in any field of

systematic biology. While there may be

individuals that disagree with the

sturgeon’s species status, we do not

think that this disagreement is

substantial. Taxonomic disagreements

are resolved through the peer-review

publication process, where evidence

and interpretation are laid out to the

rigorous scrutiny of the scientific

community. None of the biologists who

disagree with the validity of the specific

status of the Alabama sturgeon has

presented his or her views through the

formal process of submitting papers to

appropriate zoological journals. We will

give consideration only to those

disagreements which are found in the

appropriate zoological journals.

Regardless of the taxonomic status

recognized in the proposal and final

rule, the scientific process remains

available to dissenting opinions through

formal peer-review publication in

appropriate journals.

Issue 12: Mayden and Kuhajda (1996)

failed to do a thorough river system by

river system analysis of shovelnose

sturgeon.

Response: The Mayden and Kuhajda

(1996) paper is the most thorough and

comprehensive analysis of Alabama

sturgeon systematics and taxonomy

published to date. We are required to

use the best scientific and commercial

information that is available. The

information and conclusions presented

in this account were peer-reviewed and

accepted for publication by Copeia, a

highly respected scientific journal, and

one recognized as appropriate for

describing new species of fish.

Issue 13: The Mayden and Kuhajda

(1996) paper is not the most recent

science regarding the taxonomy of the

Alabama sturgeon. Bartolucci et al.

(1998) reviewed, criticized, and

trumped the Mayden and Kuhajda

(1996) paper.

Response: Bartolucci et al. (1998) was

published in a journal oriented to

statistical methodology, not an

ichthyological or systematics journal.

This paper used Bayesian Analysis

statistical methodology to compare the

principal components of measurement

data from samples of Alabama and

shovelnose sturgeon. Their results

supported previous unpublished

conclusions (Howell et al. 1994) that the

Alabama and shovelnose sturgeon were

indistinguishable by principal

component analyses of measurement

data. The publication did not identify

the measurement data that were

analyzed, nor was the source of their

data cited. Dr. Bartolucci later clarified

in submissions at the June 1999 public

hearing on the proposed rule that data

provided by Williams and Clemmer

(1991) were used. In addition,

Bartolucci et al. (1998) did not review,

criticize, or even reference the Mayden

and Kuhajda (1996) evaluation of the

taxonomy and systematics of the

Alabama sturgeon, and additional

mensural (based on measurements) and

meristic (based on counts) data, as well

as new diagnostic characters presented

by Mayden and Kuhajda (1996) were not

addressed.

Issue 14: The Service financially

underwrote the 1996 Mayden and

Kuhajda paper through a Service

contract.

Response: We did not provide funds

or any other type of support for the 1996

Mayden and Kuhajda paper.

Issue 15: The Service failed to

evaluate Bartolucci et al. (1998) in its

1998 Status Review Report for the

Alabama sturgeon and failed to analyze

or consider the publication in the

proposed rule, as evidenced by an

erroneous reference to the paper in the

proposal.

Response: We received comments on

our 1998 Status Report from Dr. Howell

referred to the publication of a recent

and relevant paper (Bartolucci et. al

1998) and, at our request, provided us

with a copy. We reviewed, analyzed,

and considered the information

published in Bartolucci et al. (1998) and

cited the paper in the proposed rule as

part of a brief review of the taxonomy

of the Alabama sturgeon (refer to Issue

13 for a more detailed discussion of our

analysis of this paper). We acknowledge

that the text in the proposed rule is

misleading as to the statistical

methodology employed by Bartolucci et

al. (1998). Therefore, we have modified

the language to clarify that Bartolucci et

al. (1998) used Bayesian Analysis

statistical methodology to compare the

multivariate means of measurements

taken from samples of Alabama and

shovelnose sturgeon (see Background

section).

Issue 16: The Service has incorrectly

cited the rules set forth by the

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26445

International Code of Zoological

Nomenclature (ICZN). Complying with

the rules does not validate a species.

ICZN is heavily based on the law of

priority. Based on priority,

Scaphirhynchus suttkusi is a synonym

of S. platorynchus.

Response: The ICZN deals with the

criteria for publication of new scientific

names. Chapter 3, Article 7, of the ICZN

recommends publication in an

appropriate scientific journal or

monographic series. As stated in the

proposed rule, the description of the

Alabama sturgeon (Williams and

Clemmer 1991) complies with ICZN

rules and recommendations. Chapter 6,

Article 23, of the ICZN sets forth the

Principle of Priority. This principle

states that The valid name of a taxon is

the oldest available name applied to it

* * * The oldest name applied to a

distinct species of Scaphirhynchus

endemic to the Mobile River Basin is

Scaphirhynchus suttkusi Williams and

Clemmer 1991.

Issue 17: The Service should request

the ICZN to render an opinion on the

question of the taxonomic validity of the

Alabama sturgeon.

Response: The purpose of the ICZN’s

Principle of Priority is to promote

stability of names. In rare cases, the

ICZN may rule on nomenclature priority

if requested. Regarding disagreements

over newly described species, the

accepted procedure is to present data,

conclusions, and nomenclature changes

in appropriate peer-reviewed journals.

Issue 18: Various genetic tests have

been conducted on Alabama sturgeon,

shovelnose, and pallid sturgeon. The

results of these tests have been

inconclusive and do not support the

listing of the Alabama sturgeon as an

endangered species.

Response: The proposed rule

recognizes the limited results of genetic

evaluations for distinguishing species of

Scaphirhynchus. However, genetic

studies cited in the proposed rule, and

several received during the comment

periods have been consistent with

biogeographic arguments for recognizing

Alabama sturgeon as an isolated

phylogenetic (classification of

organisms based on their deduced

evolutionary relationships) lineage

(Campton et al. 1995, 1999, in press;

Genetic Analyses, Inc. 1994, 1995;

Mayden et al. 1999). Mayden and

Kuhajda (1996) further demonstrated

that the degree of morphological

divergence between Alabama and

shovelnose sturgeon warranted

taxonomic species status for the former.

In preparing the proposed rule, we

relied primarily upon the taxonomic

and systematic evaluation of Mayden

and Kuhajda (1996). The genetic studies

noted above are consistent with that

distinction. The absence of detectable

differences by other investigators (e.g.,

Schill and Walker 1994, Fain et al.

2000) only attests to the very close

evolutionary relationship between

Alabama and shovelnose sturgeon. The

Alabama sturgeon meets the definition

of an endangered species.

Issue 19: The Service has completely

ignored the Schill and Walker report

(1994), which demonstrated that the

shovelnose sturgeon and the Alabama

sturgeon are the same species.

Response: The proposed rule cited

Schill and Walker (1994) who noted that

shovelnose, pallid, and Alabama

sturgeon were indistinguishable at the

mitochondrial cytochrome b locus. The

proposed rule also noted similar

findings for other currently recognized

species. Dr. Jeffrey Wells (in litt. 1999),

a geneticist hired by the AlabamaTombigbee Rivers Coalition to review

sturgeon genetic studies, also concluded

that the Schill and Walker study, among

others, does not disprove that the

Alabama sturgeon is a separate species.

Issue 20: The Service hired Genetic

Analyses, Inc., to conduct additional

genetic studies. The 1999 proposal did

not address their 1994 recommendation

for more studies.

Response: In 1994, we were made

aware of an imminent nuclear DNA

genetic study of pallid and shovelnose

sturgeon to be jointly funded by the U.S.

Army Corps of Engineers, Omaha

District, and the Service’s Region 6. At

our request, tissues from a single

Alabama sturgeon available at that time

were included in this previously

arranged study. The 1994 Genetic

Analyses, Inc., data indicated some

genetic divergence of Alabama sturgeon

from both pallid and shovelnose

sturgeon. The report noted, however,

that their results were based upon DNA

samples from a single Alabama sturgeon

and encouraged expanding the

investigation should additional

specimens become available. In 1995,

Genetics Analyses, Inc., reported similar

genetic results on two additional,

recently collected Alabama sturgeon.

They also noted differences between

individual Alabama sturgeon, and again

recommended additional studies. We

provided these conclusions and

recommendations in the proposal.

Issue 21: The U.S. Army Corps of

Engineers, Mobile District, requested

clarification of a number of issues raised

in the Genetic Analyses, Inc., 1994 draft

report. These issues were not addressed

in the 1994 Genetic Analyses, Inc., final

report.

Response: According to information

available to us, the request for

clarification by the Mobile District was

made to the Omaha District, U.S. Army

Corps of Engineers. The lack of response

to requests for clarification from one

Corps District to another has no bearing

on us or the final report.

Issue 22: The Service claims that the

three Alabama sturgeon samples tested

by Genetic Analyses, Inc., (1995) are the

same species even though one specimen

was found to be genetically different

from the other two, and genetically the

same as the shovelnose.

Response: The 1995 study found that

all three Alabama sturgeon genetic

samples were substantially divergent

from shovelnose and pallid sturgeon.

However, two new Alabama sturgeon

samples were equally divergent from a

previously tested Alabama sturgeon

sample. For this reason, Genetic

Analyses, Inc., recommended examining

nuclear DNA genetic diversity within

the Alabama sturgeon population as

additional samples become available.

We made these findings clear in the

proposed rule.

Issue 23: The Campton et al. (1995)

report found a difference in only 1 base

pair out of 435 between the Alabama

sturgeon and the shovelnose sturgeon.

The report concluded that the Alabama

sturgeon is either a separate subspecies

or a distinct population segment. The

Service failed to explain the conclusion

of the Campton et al. (1995) report and

inappropriately interpreted the report to

mean only that the Alabama sturgeon is

a separate species.

Response: Campton et al. (1995) noted

that the level of genetic similarity that

they observed between Alabama

sturgeon and pallid and shovelnose

sturgeon was more typical of isolated

populations or subspecies than

congeneric species. However, they also

referred the reader to similar levels of

genetic similarity between species and

even genera of cichlid fishes in Africa.

The report concluded that the genetic

data were consistent with biogeographic

and morphological arguments for

recognizing S. suttkusi (Alabama

sturgeon) as an endangered species or

distinct population segment * * *. In

our summary of their results, we noted

that the relative genetic differences

among the three species was small.

However, Campton et al. (1995) clearly

demonstrated that pallid and

shovelnose sturgeon are genetically

distinct in areas where they naturally

co-occur, and they also provided genetic

(mtDNA) data consistent with the

taxonomic distinction of Alabama

sturgeon from shovelnose sturgeon. A

follow-up study (Campton et al. 1999)

26446 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

reaffirmed their earlier results regarding

the genetic distinctiveness of Alabama

sturgeon with additional samples of

pallid and shovelnose sturgeon from the

Atchafalaya River. To date, those

investigators (Campton et al. 1995,

1999) have examined 75 specimens of

Scaphirhynchus from the Missouri and

Atchafalaya Rivers, and none of the

specimens possessed the mtDNA

haplotype that characterized the three

Alabama sturgeon they examined. One

nucleotide substitution out of 435 base

pairs demonstrates only the relatively

slow rate (i.e., over geological time

scales) at which genetic changes in DNA

molecules occur over time. The genetic

data are, thus, consistent with

biogeographic arguments that Alabama

sturgeon have been isolated in the

Mobile River Basin for at least 10,000

years.

Issue 24: Dr. Jeffery Wells reviewed

Campton et al. (1995), and Mayden et al.

(1999) (received during the open

comment period), and conducted

mtDNA analysis on an additional eight

shovelnose sturgeon using techniques

described by Campton et al. (1995). Dr.

Wells criticized the conclusions reached

in both previous studies and stated that

these studies, as well as his own, were

inconclusive in determining the

potential status of the Alabama sturgeon

as a separate species using mtDNA.

Response: Genetic data are not

commonly used to prove that allopatric

(do not occur in the same place)

populations are different species.

However, Campton et al. (1995, 1999)

and Mayden et al. (1999) identified a

unique mtDNA haplotype for Alabama

sturgeon that has not been observed

among over 40 shovelnose and 30 pallid

sturgeon examined to date from the

Mississippi and Missouri River Basins.

While this genetic data alone does not

prove that they are distinct species, it is

consistent with Mayden and Kuhajda’s

(1996) taxonomic description.

Issue 25: Reviews of Campton et al.

(1999) by Drs. Mike Howell and Jeffrey

Wells clearly indicate that more genetic

testing is required to determine the true

genetic status of the three species of

Scaphirhynchus.

Response: We received Campton et al.

(1999) during the open comment period

and, therefore, did not consider it in

preparing the proposal. However, as

mentioned previously, the report of

Campton et al. (1999) is consistent with

the results of their previous study

(Campton et al. 1995) and reaffirms

their conclusions regarding the genetic

distinctness of the three

Scaphirhynchus species. Genetics of

Scaphirhynchus is poorly known and

we acknowledge that more work is

needed. However, as discussed in the

previous issue and Issue 60, genetic data

alone is not conclusive in distinguishing

species, particularly for those species

which do not occur together. However,

the genetic studies conducted to date by

Campton et al. (1995, 1999) are

consistent with the results of Mayden

and Kuhajda (1996) and the taxonomic

distinction of Alabama sturgeon.

Issue 26: Dr. Stephen Fain was

inappropriately influenced by a Service

listing biologist to withdraw from

cooperative genetic studies of the

Alabama sturgeon.

Response: Dr. Fain is the DNA

Research Team Leader at the National

Fish and Wildlife Service Forensics

Laboratory in Ashland, Oregon. We

were notified by ADCNR fisheries

biologists that they had provided Dr.

Fain with samples for genetic studies on

the genus Scaphyrhinchus. We

subsequently contacted Dr. Fain to

ensure that he was aware of several

previous genetic and morphological

studies on the genus. We did not ask Dr.

Fain to withdraw from cooperative

genetic studies. We also informed Dr.

Fain that we would welcome additional

information on genetics of the Alabama

sturgeon. Dr. Fain’s research was

completed in late 1999, and

summarized in Fain et al. (1999, 2000).

These reports were made available for

public review and comment by

reopening the comment period between

January 11 and March 5, 2000.

Comments pertaining to this work are

summarized below in Issues 59 through

61.

Issue 27: The Service failed to explain

which, if any, of the five factors they are

relying upon to justify the proposed

listing.

Response: Factor A clearly establishes

the present curtailment of range and the

apparent causes of curtailment. Factor E

states that the primary threat to the

immediate survival of Alabama sturgeon

is its small population size and its

apparent inability to offset mortality

rates with reproduction and

recruitment, as evidenced by declining

rates of capture over the past two

decades. At the conclusion of the

summary of factors, the proposal stated:

Endangered status is appropriate for the

Alabama sturgeon due to extensive

curtailment of its range and extremely

low population numbers.

Issue 28: The Service’s conclusion

that current habitat conditions imperil

the Alabama sturgeon is unsupported by

the available scientific information.

Response: Factor A notes the

disappearance of the Alabama sturgeon

from about 85 percent of its historic

range, and that human activities are

associated with its decline in range.

This finding is supported by historic

trends and recent collection efforts (see

Background section). Our primary

concern under Factor A is whether the

quantity of habitat currently occupied

by the sturgeon is adequate to support

a self-sustaining, viable population. The

Background section of the proposal and

this final rule also cite studies reporting

long-distance movements of the other

species of Scaphirhynchus, possibly

between feeding and spawning sites.

While most of the impacts to the

sturgeon’s habitat were historic, gradual,

and cumulative, they still may affect the

sturgeon’s ability to move within the

system between areas for feeding and

reproduction. A reduction in natural

range from about 1,600 km (1,000 mi) to

216 km (134 mi) of river channel is

certainly cause for concern in a wideranging fish species with possible

migratory needs. This concern is

supported by other examples in the

fisheries literature (e.g., salmon, striped

bass, and robust redhorse, as well as

other sturgeon species). Occupied

habitat quality was not directly

identified as a known threat. We have

some concern that the timing of water

releases below Millers Ferry Lock and

Dam may have negative effects on

sturgeon reproduction. Other sturgeon

species’ reproductive success has been

affected by changes in water quantity

and timing (see studies cited in the

discussion under Factor A). We

acknowledge, however, that the lack of

specific information on Alabama

sturgeon reproductive habitat

requirements or the use of this area by

the sturgeon for reproduction limits our

ability to draw definite conclusions as

to current impacts on the Alabama

sturgeon.

Issue 29: The Service has failed to

consider the myriad of existing Federal,

State, and local laws that provide

additional protection for the Alabama

sturgeon and its habitat. Factor D fails

to justify listing the Alabama sturgeon

as an endangered species.

Response: We agree that a number of

existing laws and regulations benefit the

sturgeon and its habitat. Factor D,

however, addresses the inadequacy of

protective regulatory mechanisms. In

the proposed rule and in this final rule,

we note that, within the scope of other

environmental laws or Alabama State

law, there is currently no requirement to

specifically consider the effects of

actions on the Alabama sturgeon or

ensure that a project will not jeopardize

its continued existence. We concur that

this issue alone does not present a

significant threat to the Alabama

sturgeon at this time. The Act requires

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26447

that a determination of endangered or

threatened status be made on any one of

the five factors under section 4(a)(1).

See the discussion under the Summary

of Factors Affecting the Species section

for a complete description of the threats.

Issue 30: Minimum Viable Population

(MVP) is a theoretical hypothesis and

not an established quantifiable

technique. The Service has no data

(population size, mortality and

reproduction rates, etc.) to determine an

MVP.

Response: Over the past few decades,

biologists have been studying the

processes of extinction for small

populations (see Soule 1987). The

likelihood of species extinction and/or

extirpation (loss) of isolated populations

increases dramatically as population

size diminishes (Shaffer 1987). The

Alabama sturgeon has been reduced to

about 15 percent of its historic range.

Collection history and anecdotal

accounts from commercial fishermen

demonstrate a continued decline in

catches over the past few decades or, at

a minimum, an increased effort required

to collect the fish.

A number of techniques have been

developed to estimate the probability of

extinction for populations of animals

over time, or to predict the minimum

population size (MVP) necessary for a

population to persist for a given time

period (see Soule 1987). In the proposed

rule, we did not attempt to determine a

hypothetical numerical population size

necessary to sustain the Alabama

sturgeon, and we concur that the

information does not currently exist to

define a numerical MVP. We used the

MVP terminology to depict that the

Alabama sturgeon’s increasing

restriction in range, its rarity, and its life

history render the species highly

vulnerable to chance extinction.

However, for purposes of clarity, we

have removed discussion of MVP from

this final rule and instead refer to the

threat presented to the Alabama

sturgeon by its small population size.

Issue 31: The Service has offered no

proof or evidence of a current or

continuing decline in the Alabama

sturgeon’s population numbers in the

Alabama River. Alabama sturgeon have

been rare for decades and are as

plentiful in the Alabama River today as

they were 25 years ago.

Response: We concur that Alabama

sturgeon have probably been uncommon

in the Mobile River Basin for the past

few decades. However, collection data

over this time period demonstrate a

decline in distribution, as well as a

reduction in population size. For

example, collection data indicate that

the species has disappeared from the

Coosa, Tallapoosa, Black Warrior, upper

Tombigbee, and upper Alabama Rivers

since the 1960s (see Background

section). Interviews with commercial

fishermen and fisheries biologists also

indicate that the Alabama sturgeon has

disappeared from the Millers Ferry

reach of the Alabama River, and the

Cahaba, lower Tombigbee, and Mobile/

Tensaw Rivers during the past 25 years.

Recent collection efforts suggest a

decrease in abundance of the species in

the lower Alabama River and the

Claiborne Dam reach during the past 15

years.

The first attempt to determine the

status of the Alabama sturgeon in the

Mobile River Basin was by Clemmer

(1983). Although an ADCNR fisheries

biologist reported regular catches of

shovelnose (=Alabama) sturgeon in the

Cahaba River during the early 1980s,

Clemmer documented recent trends in

lower numbers of sturgeon through

interviews with commercial fishermen

and professional fisheries biologists.

Burke and Ramsey (1985) reached the

same conclusion of declining Alabama

sturgeon from interviews with veteran

fisheries biologists, conservation

officers, and full-time commercial

fishermen. They conducted random

stratified interviews with full-time

commercial fishermen and reported 18

pre-1975 captures and 7 post-1975

captures. Commercial fishermen

reported recent declines in captures of

Alabama sturgeon in the Millers Ferry

reach of the Alabama River and the

Cahaba River. Burke and Ramsey (1995)

described their ability in 1985 to

capture Alabama sturgeon with relative

ease in the Alabama River below Millers

Ferry Lock and Dam. ADCNR biologists

Tucker and Johnson (1991, 1992)

reported on sturgeon collection efforts

and interviews with conservation

officers, fisheries professionals, and

commercial and sports fishermen. They

employed a variety of collection

methods in the lower Alabama River,

Claiborne Reservoir, Millers Ferry

Reservoir, Tombigbee River, and Cahaba

River without capturing any sturgeon.

However, interviews yielded reports of

several recent captures of small sturgeon

in the lower Alabama and Cahaba Rivers

during 1991 and 1992. As noted in the

proposed rule, the most intensive

fishing effort to date was initiated in

early 1997. At the time of publication of

the proposal, more than 3,000 manhours of fishing effort directed toward

sturgeon were expended over an 18-

month period by professional fisheries

biologists. In addition, commercial and

recreational fishermen were asked to

report any captures. As a result of this

intensive effort, only three sturgeon

were captured in 1997 and 1998. Two

additional fish have been collected

during intensive fishing efforts since

publication of the proposal in 1999.

While it is unfortunate that directly

comparable data do not exist through all

decades, the disappearance of the

species from much of its range, the

anecdotal accounts by knowledgeable

fisheries biologists and commercial

fishermen of a decline in captures, and

the documented intensive efforts

required to capture the species during

the last four years clearly indicate a

reduction in the range and numbers of

Alabama sturgeon in the Mobile River

Basin over the past two decades.

Issue 32: There is no evidence that the

1898 reported catch of shovelnose

sturgeon were not immature Gulf

sturgeon.

Response: The U.S. Commission of

Fish and Fisheries (1898) represents the

best available commercial information

on sturgeon fisheries at the turn of the

century in the Mobile River Basin. The

shovelnose sturgeon was described in

1820, and the Atlantic sturgeon (as the

Gulf sturgeon was known at that time)

was described in 1814. There is no

evidence to suggest that the fisheries

biologists compiling the 1898 statistics

were not able to distinguish the two

species. The lake sturgeon, another

sturgeon species more similar in

appearance to the Gulf sturgeon than the

shovelnose, was also reported in the

statistics.

Issue 33: The Service should address

the State’s efforts to conserve the

Alabama sturgeon under Factor E.

Response: The ADCNR fishing and

hatchery efforts are addressed in the

Background section. The State’s 1997

Conservation Plan was addressed in

detail in the proposed rule under

Available Conservation Measures. We

have moved this discussion under

Factor E in this final rule, as

recommended.

Issue 34: The Service has consistently

opposed suggestions to use shovelnose

sturgeon from the Mississippi River

drainage to augment Alabama sturgeon

populations in the Mobile River

drainage.

Response: Introducing shovelnose

sturgeon from the Mississippi River

drainage into the Mobile River drainage

is ill-advised at the present time because

doing so could lead to, or accelerate, the

extinction of Alabama sturgeon through

hybridization, genetic swamping, or

competition.

Issue 35: The Service requires

continued cooperation from commercial

and recreational fishermen and the

ADCNR to successfully recover the

26448 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

Alabama sturgeon. Listing the Alabama

sturgeon under the Act will impede that

cooperation by enacting Federal take

prohibitions and penalties, and funds

available for candidate conservation

cannot be used for recovery efforts.

Response: We agree that cooperation

from ADCNR and commercial and

recreational fishermen, as well as

others, is essential to the recovery of the

Alabama sturgeon. Section 6 of the Act

allows us to enter into cooperative

agreements with States to assist them in

conserving endangered or threatened

wildlife. A section 6 cooperative

agreement between the State of Alabama

and us recognizes the State’s authority

to establish and implement programs for

the conservation of federally listed

species and provides funding assistance

towards their conservation. Under the

cooperative agreement, the ADCNR may

continue to implement the 1997

Conservation Plan for the Alabama

sturgeon, or any future approved

recovery plan. ADCNR is also eligible

for funds for conservation of the

sturgeon under our recovery and section

6 programs. Implementing regulations

(50 CFR 17.21(c)(5)) also provide States

under cooperative agreements certain

authorities for conducting actions for

the conservation (i.e., recovery) of

endangered species.

Listing the Alabama sturgeon under

the Act increases penalties for already

prohibited acts. Unauthorized removal

of sturgeon from the waters of Alabama

is already prohibited by State law.

Cooperation and assistance from private

individuals, such as recreational and

commercial fishermen, can continue

under both Federal and State permitting

authority.

Listing of the Alabama sturgeon under

the Act does not effect use of the fiscal

year 2000 candidate conservation funds

already given to the State. We have

obligated this money to the State of

Alabama; they may use it for the

purpose of candidate conservation and

it will not be rescinded.

Issue 36: The Service failed to

consider the 1997 Conservation Plan

and its favorable effect on the Alabama

sturgeon in its proposal.

Response: We outlined the 1997

Conservation Plan in the proposed rule

under Available Conservation Measures.

Implementation efforts under the plan

were also discussed under the

Background section of the proposal.

Implementation of the plan tasks, such

as construction of hatchery facilities and

collection efforts, is positive and

provides opportunities for future

population augmentation. However, the

plan has not yet been successful in

decreasing the threat of extinction to

where protection under the Act is no

longer warranted.

Issue 37: The proposed listing of the

Alabama sturgeon has made it more

difficult for ADCNR to implement the

1997 Conservation Plan because of

permitting requirements, conferencing

limitations, and Service propagation

policies.

Response: Proposed endangered

status has not affected implementation

of the 1997 Conservation Plan. We have

no permitting requirements for

proposed species; we will expedite

permitting procedures once this final

rule is published. The section 7

conferencing requirements were met

with the White Paper (Biggins 1994) and

subsequent correspondence between the

Corps and us. We published a Draft

Policy Regarding Controlled

Propagation of Species Listed Under the

Endangered Species Act on February 7,

1996 (61 FR 4716). We will work with

the State to ensure that the Alabama

sturgeon propagation program is in

compliance with the policy, once we

publish the policy in final form.

Collection efforts have continued, and

two fish have been caught since the

listing proposal was published. The

State conducted an unsuccessful

attempt to propagate the sturgeon

following publication of the proposal.

Issue 38: Candidate conservation

funds appropriated for the FY 2000

budget cannot be used for sturgeon

conservation, should the Alabama

sturgeon be listed.

Response: Funds appropriated for

Alabama sturgeon conservation in the

FY 2000 budget were committed to

Alabama sturgeon conservation efforts

while the sturgeon was a proposed

species. (Refer to Issue 35 for further

information.)

Issue 39: Listing will transfer

responsibility for managing the Alabama

sturgeon from the State to the Service,

and work on the 1997 Conservation Plan

will stop for at least a year until a

recovery plan is developed and

approved.

Response: Our policy is to develop

recovery plans for listed species within

two and a half years of their designation

as endangered or threatened species.

Approved recovery plans, however, are

not necessary to conduct recovery

actions for listed species. Under the

section 6 agreement between the State

and us, the ADCNR may continue

conservation efforts without delay.

Issue 40: The U.S. Coast Guard has

stated that listing the Alabama sturgeon

would seriously limit, if not hamper, the

dredging of all navigable waterways in

the historic Mobile River Basin.

Response: The U.S. Coast Guard

comments were based on a premise that

listing the sturgeon would stop

navigation maintenance. They were

unaware of an impact assessment on

navigation maintenance conducted and

agreed to by both us and the Mobile

District Corps of Engineers that

concluded that navigation dredging

would not need to be eliminated,

modified, or altered should the Alabama

sturgeon be listed. They have since been

provided with this information.

Issue 41: The White Paper is an

informal agreement that must be

endorsed at the national level to be

believable. The Service should include

the White Paper in its entirety in the

final rule to list the Alabama sturgeon.

Response: The White Paper (Biggins

1994) is not an agreement, but a 1994

assessment of impact of a Federal

agency’s activities on a proposed

species. This assessment found no

adverse effect to the Alabama sturgeon

from current Corps activities and

permitting activities in the lower

Alabama River. The no-adverse-effect

determination was formalized by an

exchange of letters between the two

agencies that same year. In 1998 and

1999, both agencies reaffirmed this

conclusion following studies that

supported the determination. Federal

agency activity impact assessments on

listed species, required by the Act, are

conducted at the field level. Should

disagreements occur, they may be

elevated to the Regional and District

level. Although there was no

disagreement between agencies

concerning the no-adverse-effect

determination on the Alabama sturgeon,

letters reaffirming the determination

were exchanged between the Service’s

Regional Director and the Corp’s

Division Commander because of

continued public concern. There is no

disagreement between the agencies at

the field, Regional, or District levels;

therefore, there is no need to elevate this

assessment to the national level.

Much of the assessment and

conclusions of the White Paper, as well

as of the more recent correspondence,

was incorporated into the proposed rule

under Factor A, and the White Paper

(Biggins 1994) was cited for reference.

The White Paper and all subsequent

correspondence relating to the White

Paper and Federal activities within

Alabama sturgeon habitat are currently

a part of the administrative record to list

the sturgeon under the Act. Publishing

the White Paper and pertinent

correspondence would not add to, or

detract from, the protection of the

Alabama sturgeon under the Act, or

affect or change any Federal agency’s

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26449

responsibility under the Act. We have,

however, included the White Paper at

the end of this rule and expanded and

clarified the discussion of it and its

findings in this final rule.

Issue 42: In the 1994 White Paper, the

Service and the Corps concluded that

listing the sturgeon would have no

impact on State water quality standards.

However, EPA has agreed in a

Memorandum of Agreement Regarding

Enhanced Coordination under the Clean

Water Act and Endangered Species Act

(MOA) between EPA and us to consider

the effects of their programs and

activities on listed species. Under the

Agreement, EPA agreed that modified

regulations will prohibit mixing zones

likely to cause jeopardy to listed

species. Therefore, listing the Alabama

sturgeon may require changes in State

water quality standards throughout its

historic range.

Response: Under Factor A, we note

that pollution may have contributed to

the decline of the Alabama sturgeon in

the past. However, at this time, we have

no information that current water

quality regulations are not protective of

the Alabama sturgeon.

The MOA between the Service and

EPA is to ensure appropriate

implementation of both the Clean Water

Act and the Endangered Species Act.

The MOA does not change, or add to,

the legal responsibilities of either

agency under either Act. Currently,

there are 62 listed species in Alabama

that are subject to consultation on water

quality standards under the MOA.

Under the Endangered Species Act,

Federal agencies, including EPA, are

obligated to consider the effects of their

actions, including permitting actions, on

endangered and threatened species, and

to avoid jeopardizing the continued

existence of the species. Only actions

impacting the species need to be

considered. The Alabama sturgeon is

believed to be extirpated from

approximately 85 percent of its historic

range in the Mobile River Basin. Based

on current knowledge of the species,

only Federal actions affecting the lower

216 km (134 mi) of the Alabama River

need to be assessed for impacts on the

Alabama sturgeon. We are unaware of

any permitted discharge within this

river reach, or anywhere else, that is

likely to jeopardize the continued

existence of the Alabama sturgeon.

Issue 43: EPA recently proposed

additions to Alabama’s 303(d) list, based

in part, on the presence of federally

listed species in streams. A substantial

portion of the Mobile River Basin could

become subject to 303(d) designation

based solely on the habitat/historic

range of the Alabama sturgeon.

Response: Streams proposed by EPA

for addition to Alabama’s 303(d) list,

due to listed aquatic species, have to

meet certain criteria. These include a

documented decline or extirpation of

the listed species since 1975, and an

identified pollutant that contributes to

that decline (such as sediment or

nutrients). These criteria limit the

303(d) proposals to a few stream

segments with demonstrated problems,

affecting only a small number of the

streams that support listed species in

Alabama. Currently, no pollutants have

been implicated in the decline or

extirpation of the Alabama sturgeon

from any stream segment since 1975.

The listing proposal pointed out that

two localized river segments above

Claiborne Lock and Dam have been

reported as occasionally impaired due

to nutrients and organic enrichment;

however, this is not considered a

significant impact on the Alabama

sturgeon. We do not anticipate

requesting EPA to consider adding

streams or stream segments to the State

303(d) list based on the past or present

occurrence of the Alabama sturgeon.

Issue 44: Any violation of a discharge

permit into waters supporting Alabama

sturgeon could potentially result in take

of the species under the Act. Since

critical habitat was not proposed for the

sturgeon, any violation of a National

Pollutant Discharge Elimination System

(NPDES) discharge permit within the

sturgeon’s historic habitat in the Mobile

River Basin would be subject to civil

and criminal penalties under the Act.

Response: Since 1994, it has been our

policy to notify the public of activities

that could potentially result in a

violation of the Act in proposed

regulations to list species. In the

proposed rule, we identified discharge

permit and water withdrawal permit

violations as having the potential to

result in a take of Alabama sturgeon. We

have received many comments

expressing concern that common, minor

violations of NPDES discharge permits

throughout the historic range of the

sturgeon will be prosecuted as take of

Alabama sturgeon. This is not our

intent. Only violations that result in

injury or death to the listed species

would be prosecutable under the Act.

However, since illegal discharge of

pollutants is also identified as a

potential take, we have removed the

section on permit violations from the

referenced discussion in this final rule.

Permit violations that result in death or

injury to Alabama sturgeon or any other

federally listed species, however, could

be considered take.

Issue 45: Listing the Alabama

sturgeon would have an adverse impact

on hydropower operations below Robert

F. Henry and Millers Ferry

Hydroelectric Projects, and may

potentially impact operation of the

Allatoona and Carters Hydroelectric

Projects. There is also concern that the

Service could make unsubstantiated

claims of harm as a result of future

changes in flow regimes in the lower

Alabama River.

Response: The proposed rule noted

that flow regimes below Millers Ferry

Lock and Dam may have a negative

effect on Alabama sturgeon

reproduction and recruitment, based on

studied responses of other sturgeon

species to flow modifications within

their habitats. However, we also noted

that it is not currently known if this area

is important to, or even used for,

Alabama sturgeon reproduction.

Therefore, we see no reason for

recommending any modification of flow

regime below Millers Ferry Lock and

Dam at this time. Should future research

determine that this area is important for

sturgeon reproduction, and/or flow

regimes were having a negative effect on

sturgeon, we and the Corps would

examine options available under section

7 consultation. Options might include

working with the Corps and

hydroelectric operator to provide more

favorable flows for the sturgeon, and/or

providing for any incidental take of

sturgeon resulting from activities of the

Corps and hydroelectric operator via an

incidental take statement as part of a

biological opinion.

Future proposed changes in flow

regimes in the lower Alabama River

should thoroughly consider potential

impacts to the Alabama sturgeon, as

well as other species. Continued

research into the life history and habitat

of Alabama sturgeon can provide a

sound basis for future decisions

regarding potential changes in flow

regimes in the lower Alabama River.

The Alabama sturgeon is no longer

believed to occur in the Millers Ferry

Pool below Robert F. Henry Lock and

Dam. The Allatoona and Carters

hydroelectric projects in Georgia occur

outside of, and are remote from,

Alabama sturgeon’s historic and

currently occupied habitat. These

projects are unlikely to affect the

Alabama sturgeon, or be affected by its

protection under the Act.

Issue 46: A recent economic impact

analysis of the proposed listing,

developed by economists at Troy State

University, determined that a more than

$15 billion adverse economic impact

will result from listing the Alabama

sturgeon as endangered. There should

be a cost/benefit analysis conducted

26450 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

prior to listing the Alabama sturgeon

under the Act.

Response: Section 4(b)(1)(A) of the

Act requires us to base our decision on

whether to list a species solely on the

best scientific and commercial data

available on the species’ status and

precludes us from considering economic

or other impacts that might result from

the listing. Public comments directed to

economic or other potential impacts of

listing are outside the scope of this

rulemaking.

Section 4(b)(2) of the Act does require

us to consider economic or other

impacts associated with the designation

of critical habitat. However, we believe

that the referenced economic impact

analysis cited above was based upon a

set of incorrect assumptions about how

the proposed listing would affect

economic activity throughout the

Mobile River Basin. The referenced

analysis made no attempt to identify or

quantify any past or present economic

impact associated with 38 aquatic

species currently listed throughout the

Basin. For example, there are listed

species associated with all of the

navigation channels of the Mobile River

Basin, yet no negative economic impact

on navigation, ports, or marinas due to

the presence of these species was

documented in the economic analysis.

The analysis assumes, however, without

justification or examples, that all

waterways within the Mobile River

Basin will be closed to navigation by the

designation of endangered status to the

Alabama sturgeon, and estimates

economic consequences that might

result from a halt in all navigation in the

Tennessee-Tombigbee, Tombigbee,

Black Warrior, Mobile, and Alabama

River channels, and the closing of ports

and marinas. The Alabama sturgeon

currently inhabits only the lower

Alabama River. The Corps and the

Service have determined that navigation

maintenance has no adverse effect on

the Alabama sturgeon. The proposed

rule specifically stated that maintenance

dredging is unlikely to result in a take

of Alabama sturgeon. Therefore,

navigation, ports, and marinas will be

economically unaffected by this listing.

The economic analysis also assumed

that water withdrawals and discharges

within the Alabama, Coosa, Tallapoosa,

Cahaba, Tombigbee, Black Warrior, and

Mobile Rivers and their tributaries

would be capped at present levels

should the sturgeon be listed. As noted

above, the Alabama sturgeon currently

inhabits only the lower Alabama River.

Water withdrawal has not been

identified as a threat to the Alabama

sturgeon. In addition, all of the rivers

assumed to be impacted by the analysis,

and many of their tributaries, currently

support populations of endangered and

threatened species that have been listed

for many years, and yet the analysis

documented no negative economic

impact from water withdrawal and

discharge capping due to the presence

of these listed species.

Issue 47: Listing the Alabama

sturgeon may restrict the repair and/or

construction of new and existing roads

and bridges on the lower Alabama

River.

Response: Section 7 of the Act

requires Federal agencies, in

consultation with us, to determine if

their actions are likely to jeopardize the

continued existence of listed species or

adversely modify or destroy their

critical habitat, and to conduct their

activities in ways that are protective of

listed species. This includes activities

conducted or permitted by Federal

agencies, such as road and bridge repair

and construction. There are currently 38

listed aquatic species in the Mobile

River Basin, including four currently

inhabiting the Alabama River. As a

result, consultations are a common

occurrence in the Mobile River Basin,

normally proceeding without attention

of or impact to the general public. Based

on our knowledge of conditions in the

lower Alabama River, the life history

and habitat of the Alabama sturgeon,

and the localized and temporary nature

of impacts associated with road and

bridge construction, we do not foresee

any restrictions necessary on bridge and

road construction or repair resulting

from addition of the Alabama sturgeon

to the list of species protected under the

Act.

Issue 48: Listing the Alabama

sturgeon under the Act will result in

third party lawsuits to stop Federal

projects (such as maintenance dredging)

or stop the issuance of discharge

permits.

Response: Citizen suits are allowed

under the Act. However, it has been our

experience that fully complying with

the requirements of the Act, as well as

other Federal laws, is the best way to

avoid citizen suits.

Issue 49: The Act clearly states that to

the maximum extent prudent and

determinable, critical habitat shall be

designated concurrently with listing a

species. By not proposing critical

habitat concurrent with the listing, the

proposal is in violation of the Act.

Response: Implementing regulations

allow us to determine that critical

habitat designation is not prudent if

such designation would result in an

increase in threat to the species, or if

designation does not benefit the species.

In the proposal, we determined that

because of the limited range of the

species, critical habitat would provide

no additional benefit for the species

beyond that which it would receive

from listing. In addition, we were

concerned that an adverse public

reaction to critical habitat designation

would result in loss of cooperation by

fishermen and other partners in current

conservation efforts. Therefore, in the

proposed rule we concluded that

designation of critical habitat for the

Alabama sturgeon was not prudent.

During the public comment period,

we received numerous comments from

both proponents and opponents of the

species listing that favored designation

of critical habitat. Due to this public

response, we now believe that it is

unlikely than any adverse effect on the

sturgeon would occur as a result of

critical habitat designation, and that

such designation is indeed prudent, but

not determinable at this time. Section

4(b)(6)(C) of the Act provides that a

concurrent critical habitat

determination is not required with a

final regulation implementing

endangered status and that the final

designation may be postponed for one

additional year beyond the period

specified in section 4(b)(6)(A), if (I) a

prompt determination of endangered or

threatened status is essential to the

conservation of the species, or (ii)

critical habitat is not then determinable

(see Critical Habitat section).

Issue 50: The Service did not provide

actual notice of the proposed regulation

to list the Alabama sturgeon to ADCNR,

or to each of the three Alabama counties

in which the sturgeon currently exists,

as the Act requires.

Response: We provided advance

notification, by facsimile, to the

Governor of Alabama, the ADCNR, and

the County Commissions of Wilcox,

Clarke, Monroe, and Baldwin Counties,

as well as other parties, of the proposal

the day before its publication in the

Federal Register. Upon publication of

the proposal, we mailed them copies of

the complete text as published in the

Federal Register and solicited their

comments. We have fully complied with

the notification requirements of the Act.

Issue 51: The Service’s proposed

listing is based on the historic range of

the Alabama sturgeon; therefore, the

Service may be required to give actual

notice to almost every county in

Alabama and several counties in

Mississippi.

Response: We are required to give

notice and invite the comments of each

county in which the species proposed

for listing is believed to occur (see 50

CFR 424.16(c)(1)(ii) and 16 U.S.C.

1533(b)(5)(A)(ii)). The sturgeon is

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26451

extirpated from about 85 percent of its

historic range in Alabama and

Mississippi. It is currently believed to

inhabit the Alabama River in Clarke,

Monroe, and Wilcox Counties. We gave

these counties notice of the proposed

regulation and solicited their comments.

Issue 52: The Service must comply

with the National Environmental Policy

Act (NEPA) when designating critical

habitat.

Response: Environmental assessments

and environmental impact statements,

as defined under NEPA, are not required

for regulations enacted under section

4(a) of the Act (see 48 FR 49244). Please

refer to the NEPA section of this final

rule.

Issue 53: In submitting the proposed

rule to scientific specialists for review,

the Service must comply with the

Federal Advisory Committee Act

(FACA).

Response: FACA applies to

committees established by Federal

agencies to provide recommendations

and advice to an agency. We provided

copies of the proposed rule to five

scientific specialists for independent

review during the open comment

period. We received individual

comments from four of these reviewers

during the open comment period. The

fifth scientist provided comments

through the Alabama-Tombigbee Rivers

Coalition during the open comment

period. Our request and receipt of

comments from individual peer

reviewers during the open comment

period is fully consistent with FACA

requirements.

Issue 54: The Service must comply

with Executive Order 12866 and prepare

a Regulatory Plan.

Response: Because section 4(b)(1)(A)

of the Act specifically prohibits

consideration of information other than

scientific and commercial information,

we are prohibited from applying the

procedures of Executive Order 12866 to

proposed and final listings.

Issue 55: The Service must prepare a

regulatory flexibility analysis.

Response: In accordance with the

requirements of section 4(b)(1)(A) of the

Act mentioned under Issue 54 above,

the Regulatory Flexibility Act does not

apply to listing actions.

Issue 56: The Alabama strugeon is

protected by the State and there is a

State-managed 1997 Conservation Plan

in place. Listing the Alabama sturgeon

will provide no added benefits to the

current conservation efforts. There is no

need for Federal protection of this

species.

Response: We acknowledge that the

State of Alabama protects the Alabama

sturgeon from scientific and recreational

take, and has implemented conservation

efforts for the species. To date, the 1997

Conservation Plan has not been

successful at improving the status of the

species such that it no longer requires

protection under the Act. Section 4(a)(1)

of the Act requires us to determine

whether any species is an endangered

species or a threatened species because

of any of five factors. Listing the

Alabama sturgeon will not detract from

the efforts of the 1997 Conservation

Plan. The Act requires us to cooperate

with State agencies in conserving

endangered species, and we will

continue to cooperate with the ADCNR

in conserving the Alabama sturgeon.

Listing will also augment protection and

conservation of the Alabama sturgeon.

The Act requires Federal agencies to use

their authorities to conserve listed

species. Without protection under the

Act, there is no legal requirement to

specifically consider the effects of new

Federal projects funded, carried out, or

permitted within the Alabama

sturgeon’s habitat. Since many of the

activities associated with the Alabama

River channel habitat used by the

sturgeon are funded, carried out, or

permitted by Federal agencies, the

Federal agency conservation

responsibilities invoked by the Act will

benefit the species. This does not mean

that activities of Federal agencies or

permittees will be impeded, rather that

projects will be planned and

implemented in ways that reduce harm

or injury to the species, and avoid

jeopardizing its continued existence.

Issue 57: It is not clear that listing the

Alabama sturgeon will result in its

recovery.

Response: The Act allows us to only

consider information related to a

species’ status when determining as to

whether protection is warranted under

the Act. Therefore, we may not consider

the feasibility of recovery in

determining whether to list a species.

Issue 58: Listing the Alabama

sturgeon under the Act may create

restrictions on numerous permit actions.

Response: Federal agencies are

required under the Act to consider the

effects of their actions, including issuing

permits, on endangered and threatened

species. In cases where the action affects

the species, the agency is required to

consult with us. If during consultation,

the action is determined to likely

jeopardize the species’ continued

existence, it may be significantly

modified, or even prohibited. However,

this is rarely the case. In over 1,000

consultations in Alabama over the past

decade, only two consultations resulted

in a jeopardy determination, and in both

of these cases, the programs were

modified and went forward. In most

cases, projects that may affect listed

species have been slightly modified to

reduce or eliminate the effect, and/or

the resulting biological opinion

anticipates some level of take of the

species, which is exempted from section

9 prohibitions. In addition, we and the

Corps have already determined that

most Corps permitting activities in the

lower Alabama River currently are not

known to adversely affect the Alabama

sturgeon. Therefore, it is unlikely that

listing the sturgeon under the Act will

create restrictions on numerous permit

actions.

Fain et al. (2000) Report

During the open comment period for

the Fain et al. (2000) report on river

sturgeon genetics, we received six

comments and one peer-reviewed

manuscript. One commenter felt that the

use of mtDNA for forensics purposes

should be thoroughly peer-reviewed for

all sturgeon species. Two commenters

believed that the report established that

the Alabama sturgeon should not be

considered a distinct species. Three

commenters noted that the report

establishes only that the cytochrome-b

gene is not useful for examining genetic

variation within the genus

Scaphirhynchus and two other sturgeon

species groups. The peer-reviewed

manuscript we received during the

comment period concluded that current

mtDNA data provide a potentially

diagnostic genetic character supporting

taxonomic recognition of the Alabama

sturgeon as a distinct species. Below are

issues raised in these comments relating

to this action and our responses to each.

Issue 59: Alabama and shovelnose

sturgeons are genetically identical.

Response: A study by Schill and

Walker (1994), discussed in the

background section of the proposed

rule, found no sequence divergence in a

cytochrome b mtDNA sequence between

a single specimen of the Alabama

sturgeon and shovelnose sturgeon. All

subsequent genetic studies with larger

samples of Alabama and shovelnose

sturgeons have revealed genetic

differences between samples of the two

species. Cytochrome b mtDNA

sequences reported by Fain et al. (2000)

indicate that the Alabama sturgeon

sample had only one sequence type, A,

whereas the shovelnose sturgeon sample

included two sequence types, B and C,

that were not found in the Alabama

sturgeon sample. Although sequence A

was found in both, it differed in

frequency in Alabama (frequency = 1.0)

and shovelnose (frequency = 0.86)

sturgeons. Fain et al. (2000) concluded

that these differences were not

26452 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

diagnostic for forensic purposes.

Campton et al. (in press) report a unique

mtDNA sequence at the mtDNA control

region found in all three Alabama

sturgeons sampled, but was not found in

any of a sample of 37 shovelnose

sturgeon and putative shovelnose/pallid

sturgeon hybrids. This potentially

diagnostic genetic marker differed from

the most similar shovelnose and pallid

sturgeon sequences by a unique basepair substitution. These results were

confirmed by those of Mayden et al.

(1999), which are discussed in our

response to Issue 24. Nuclear DNA

divergence detected between Alabama

sturgeons and other Scaphirhynchus

reported by Genetic Analyses, Inc.,

(1994, 1995) is discussed in our

responses to Issues 20 and 22 and in the

Background section of this rule.

Issue 60: Genetics is the best science

for making taxonomic determinations

and trumps morphological analyses.

Response: The most scientifically

credible approach to making taxonomic

determinations is to consider all

available data involving as many

different classes of characters as

possible. Classes of characters that can

be considered include morphological,

karyological (chromosomal),

biochemical (including DNA analysis

and other molecular genetic

techniques), physiological, behavioral,

ecological, and biogeographic characters

(Wiley 1981). The consideration given

to any given class of characters in

making a taxonomic decision depends

on several factors. These include the

availability and quality of the data, the

appropriateness of the method and

design of the study to the taxonomic

issue in question, and the demonstrated

utility of the method to similar issues or

taxonomic groups. Genetic data have

their greatest utility in making specieslevel taxonomic determinations when

the putative species are sympatric

(occur together) and the degree of

natural genetic interaction can be

evaluated. When the putative species

are allopatric, as with Alabama and

shovelnose sturgeons, genetic data

provide a measure of divergence that

must be evaluated along with all other

available measures of divergence in

making a determination whether

species-level differences exist. When

sample sizes are small, either in terms

of number of individuals or number of

genetic regions or loci tested, the

taxonomic value of genetic data is

diminished.

Issue 61: Based on the study by Fain

et al. (2000), Alabama and shovelnose

sturgeons are the same species

(conspecific).

Response: The study of Fain et al.

(2000) was designed to develop a

procedure for the forensic identification

of caviar; it was not designed to

critically examine the taxonomy of

sturgeons of the genus Scaphirhynchus.

Their choice of a portion of the

cytochrome b sequence is reasonable for

their purpose of evaluating a number of

different genera distributed over a wide

geographic range across different

continents. Failure to find a diagnostic

marker for Alabama sturgeon in a gene

region chosen to have a somewhat

conservative rate of divergence does not

mean that it is not a species or that

genetic differences were not found;

genetic differences are discussed in our

response to Issue 59. Fain et al. (2000)

observe that when minimal genetic

variation is found with such a

technique, it can mean that the species

have recently diverged and there has not

been time for fixation of genetic

differences. That species formation can

take place more rapidly than

differentiation of genetic markers can

become established has long been

appreciated by systematists and

taxonomists applying genetic data

(Avise 1994). Cytochrome b is not the

best choice of a genetic region for

resolving the closely related species in

the genus Scaphirhynchus. In such

cases it is appropriate to examine a gene

region known to have a faster rate of

evolution that might be reflected in a

difference between species. The study of

Campton et al. (in press) employed the

more rapidly evolving control region of

mtDNA with the results described under

Issue 59. Campton et al. (in press) also

discuss other cases where speciation has

occurred in fishes with very little

genetic divergence in cytochrome b, and

Fain et al. (2000) identifies lack of

divergence between pairs of other

sturgeon species. Interpreted in light of

the minimal gene regions studied, the

small sample sizes of Alabama sturgeon,

and evidence from other species that

species formation can occur with

minimal detectable genetic

differentiation in DNA regions

commonly studied, the genetic data are

consistent with and do not demand the

rejection of taxonomic conclusions

based on morphological and

biogeographical data that the Alabama

sturgeon qualifies for recognition as a

valid species.

Conservation Agreement Strategy

During the open comment period for

the Conservation Agreement Strategy,

we received 259 letters recommending

implementation of the Strategy and

withdrawal of the listing action. We also

received five letters opposing the use of

the Strategy to preclude listing. Below

are issues raised in these comments

relating to this action and our responses

to each.

Issue 62: The Conservation Agreement

Strategy fully addresses the threats

identified in the proposed listing rule.

Therefore, it provides the basis for

either withdrawing the listing action for

the Alabama sturgeon, or listing as

threatened instead of endangered.

Response: Conservation actions for

the Alabama sturgeon have been

conducted over the past years by the

State of Alabama, other concerned

parties and us under a Conservation

Plan. These actions have been

successful to the extent of increasing

our knowledge of methods to capture

the fish and maintain it in captivity.

However, the species remains

vulnerable to extinction because of its

small population size and restricted

range. Early this year we were requested

by the State of Alabama to develop and

enter into a formal Conservation

Agreement and Strategy with the State

and others to continue and to increase

conservation efforts for the Alabama

sturgeon. We collectively developed a

conservation strategy that is

technologically and economically

feasible and that has a good chance of

addressing the threats to the continued

existence of the Alabama sturgeon. We

also released the Conservation

Agreement Strategy for public review

and comment. We then reviewed the

comments received, and considered the

certainty and effectiveness of the

Conservation Agreement Strategy as it

relates to the current and future status

of the sturgeon.

We concluded that the Conservation

Agreement Strategy is the best approach

for conservation of the Alabama

sturgeon; however, the certainty and

effectiveness of these efforts in

removing existing threats remain

unproven and dependent upon many

factors beyond human control. For

example, the Strategy can only be

effective if sufficient mature fish of both

sexes can be captured. In the past 4

years we have only captured five fish,

of which only one was in reproductive

condition. While the Strategy calls for a

dramatic increase in capture efforts over

the next decade, the capture of

sufficient fish in appropriate condition

cannot be assured.

Collection history and anecdotal

accounts from commercial fishermen

indicate that the numbers of Alabama

sturgeon have been declining since the

construction of dams in the Alabama

River during the 1960’s and early

1970’s. It is currently unknown if this

decline is an effect of low population

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26453

numbers and the subsequent inability of

the fish to reproduce successfully, or a

result of inadequate habitat quantity, or

a combination of factors.

Although the successful

implementation of the Conservation

Agreement Strategy will maintain

current habitat quantity and quality and

provide information on the habitat

needs of the Alabama sturgeon, we

cannot currently predict what effect that

information may have on the future

status of the species. Therefore, based

on our analysis, the Conservation

Agreement Strategy does not remove

existing threats to the Alabama sturgeon

to a degree to where it no longer

warrants listing under the Act. The

Conservation Agreement Strategy,

however, does provide the best available

actions for the conservation of the

Alabama sturgeon, and may lead to its

eventual recovery. The Strategy has

outlined what the species needs for

recovery, and it will make an excellent

recovery plan.

Issue 63: The Conservation Agreement

Strategy fails to address the factors

sufficiently to have an effect on the

listing determination of the Alabama

sturgeon.

Response: We concur that the Strategy

does not remove threats to the Alabama

sturgeon to a degree that precludes its

need for protection under the Act.

However, the Conservation Agreement

Strategy can influence many future

actions covered under sections 4, 6, and

7 of the Act. For example, the Strategy

provides the basis for an Alabama

sturgeon recovery plan, identifying

current and future recovery actions

essential to the species’ conservation.

The Conservation Agreement Strategy

could become the State’s program to

conserve the sturgeon under section 6 of

the Act. In addition, the Corps’

involvement, commitments, and actions

under the Conservation Agreement

Strategy would, in large part, fulfill their

conservation obligations under section

7(a)(1) of the Act. Positive results of the

Conservation Agreement Strategy could

facilitate future section 7(a)(2)

consultations.

Issue 64: The Department of the

Interior had already made a decision

regarding the listing of the Alabama

sturgeon when the comment period

opened in February.

Response: As stated in the February

16, 2000, Federal Register notice (65 FR

7817), we reopened the comment period

to obtain public comment on the

Conservation Agreement Strategy’s

relevance and significance to the

upcoming listing decision. We reviewed

all comments received prior to making

a determination to list the Alabama

sturgeon as an endangered species.

Issue 65: The Conservation Agreement

Strategy failed to allow public

involvement in the development of the

conservation goals and strategies, and

did not appear to include consultation

with scientific authorities with expertise

in population ecology or dynamics. The

result is an agreement that fails to

consider the geographic scale needed for

long term survival of the species.

Response: Much of the Conservation

Agreement Strategy is based upon the

1997 Conservation Plan. This Plan had

wide distribution and input, including

that of private and public professional

fisheries biologists and ecologists. Little

had changed since development of the

1997 Conservation Plan. The parties

used that Plan as a starting point and

developed the Conservation Agreement

Strategy. The Conservation Agreement

Strategy was executed by the parties

prior to public comment because the

signatories were concerned, in part,

about losing prime spawning time for

the Alabama sturgeon if execution was

delayed until after public comment. The

parties to the Conservation Agreement

Strategy agreed that an open comment

period after execution was appropriate

to provide the public and scientific

community the opportunity for input in

the Conservation Agreement Strategy,

its objectives and its associated tasks,

and that Strategy 2000 would be

modified as deemed appropriate by the

signatories.

Issue 66: The Service did not follow

the rules of FACA when developing the

Conservation Agreement Strategy.

Response: The Conservation

Agreement Strategy is a joint effort by

the parties to eliminate or significantly

reduce current threats to the Alabama

sturgeon. Entering into such agreements

with states, other federal government

entities and other interested private

parties to accomplish mutual goals is a

routine practice of the Service and other

federal agencies. These are not the type

of activities that are subject to FACA.

Peer Review

In accordance with our July 1, 1994

(59 FR 34270), Interagency Cooperative

Policy on Peer Review, we requested the

expert opinions of independent

specialists regarding pertinent scientific

or commercial data and assumptions

relating to the supportive biological and

ecological information in the proposed

rule. The purpose of such review is to

ensure that the listing decision is based

on scientifically sound data,

assumptions, and analyses, including

input of appropriate experts and

specialists.

We requested five academicians who

possess expertise on Alabama and

shovelnose sturgeon taxonomy and

systematics to review the proposed rule

by the close of the comment period.

Four of these individuals responded

directly to our request. All expressed

their belief that the data support

protection of the Alabama sturgeon

under the Act. Three peer reviewers

strongly supported the taxonomic status

of the Alabama sturgeon, and two of

these provided supporting information.

One reviewer expressed some personal

doubt regarding taxonomic status of the

Alabama sturgeon, but felt the fish

represented a subspecies, or at a

minimum, a unique population that

needed protection under the Act. This

individual also noted that Mayden and

Kuhajda (1996) convincingly argued for

species status.

The fifth reviewer did not directly

respond to our request for peer review;

however, he provided comments

opposing the proposal at the public

hearing and through an organization

opposed to the listing. We have

addressed these comments in the

Summary of Comments and

Recommendations section, above.

Summary of Factors Affecting the

Species

After a thorough review and

consideration of all information

available, we determine that the

Alabama sturgeon should be classified

as an endangered species. We followed

the procedures found at section 4(a)(1)

of the Act (16 U.S.C. 1531 et seq.) and

regulations (50 CFR part 424) issued to

implement the listing provisions of the

Act. We may determine a species to be

endangered or threatened due to one or

more of the five factors described in

section 4(a)(1). These factors and their

application to the Alabama sturgeon

(Scaphirhynchus suttkusi Williams and

Clemmer 1991) are as follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range. The

best available data indicate that the

Alabama sturgeon has disappeared from

85 percent of its historic range. Its

decline has been associated with

construction of dams, flow regulation,

navigation channel development, other

forms of channel modification, and

pollution. Dams in the Alabama River

have reduced the amount of riverine

habitat, impeded migration of Alabama

sturgeon for feeding and spawning

needs, and changed the river’s flow

patterns. The species is now restricted

to a 216-km (134-mi) reach of the

Alabama River below Millers Ferry Lock

and Dam, downstream to the mouth of

26454 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

the Tombigbee River. Whether the

quantity of fluvial (stream) habitat

currently available to the species in this

river reach is adequate to meet all of the

ecological needs of a self-sustaining

population is unknown.

Changes in natural river flow regimes

by operation of hydroelectric dams are

known to be detrimental to other

sturgeon species (e.g., Khoroshko 1972,

Zakharyan 1972, Veshchev 1982,

Veshchev and Novikova 1983, Auer

1996). Flow quantity is believed to be

adequate to maintain sturgeon in the

lower Alabama River below Claiborne

Lock and Dam (Biggins 1994). The

Alabama Power Company currently

releases 57 cubic meters per second

(cms) (2,000 cubic feet per second (cfs))

seasonal minimum flow from Jordan

Dam into the lower Coosa River, and 34

cms (1,200 cfs) minimum flow from

Thurlow Dam into the lower Tallapoosa

River. These two releases provide a

combined 91 cms (3,200 cfs) minimum

flow to the upper Alabama River for

passage through the three Alabama

River locks and dams. Alabama River

flows are further augmented by

generating flows from Jordan, Thurlow,

and Bouldin dams, as well as other

Alabama River tributary flows. The

average daily flows measured over the

last decade downstream of Claiborne

Lock and Dam have ranged from over

100 cms to nearly 7,000 cms (3,500 to

247,000 cfs). While no evidence

suggests that the Alabama sturgeon is

limited by water quantity below Robert

F. Henry and Millers Ferry Locks and

Dams, these dams house hydropower

facilities and neither is required to

maintain a minimum flow. Current low

flow releases from these two facilities

can be as little as 3 hours of generation

timed according to peaking needs, plus

lockage releases. The effect of such daily

flow fluctuations below Millers Ferry

Lock and Dam on Alabama sturgeon

reproductive, larval, or juvenile habitat

requirements may be negative; however,

the importance of the area between

Robert F. Henry and Claiborne lock and

dams for sturgeon reproduction is

currently unknown.

The most visible continuing

navigation impact within presently

occupied Alabama sturgeon habitat is

maintenance dredging of navigation

channels. We have no evidence that

such dredging currently constitutes a

limiting factor to the sturgeon (Biggins

1994). The Corps has constructed 67

channel training works (jetties) at 16

locations in the lower Alabama River,

eliminating about 60 percent of

dredging requirements at those

locations. In the Mississippi River

drainage, such channel training works

are believed to be used as spawning

areas by other sturgeon species (Mayden

and Kuhajda 1996).

Maintenance dredging continues to be

necessary in the Alabama River to

remove seasonally accumulated material

from deposition areas within the

navigation channel. Dredged materials

are usually placed on natural deposition

features adjacent to the navigation

channel, such as point bars or lateral

bars. Due to the natural dynamics of

river channels and annual sediment

movement, maintenance areas have

remained fairly constant over time, with

the same areas repeatedly dredged or

used for disposal. Recent investigations

by the Corps, ADCNR, and us indicate

that the distribution of stable benthic

(bottom) habitats in the riverine

portions of the Alabama River has been,

and continues to be, strongly influenced

by historical dredge and disposal

practices. Changes in disposal practices

could disrupt the existing equilibrium.

For example, river channels are strongly

influenced by the amount of sediment

moving through them. Increases in

sediment budget can cause aggradation

(filling) of the channel, while decreases

in sediment can cause degradation

(erosion). With the upstream dams

forming barriers to the movement of

sediment through the Alabama River,

additional reduction of sediment

availability (e.g., through upland

disposal) could increase river bed and

bank erosion, including areas that are

now important, stable habitats. In

consideration of this situation,

significant changes in current disposal

methods in the Alabama River could

adversely affect the Alabama sturgeon.

Recent investigations by ADCNR

biologists and us have documented the

presence of high-quality, stable river

bottom habitats interspersed within and

between dredge and disposal sites in the

lower Alabama River (Hartfield and

Garner 1998). These habitats included

stable sand and gravel river bottom

supporting freshwater mussel beds, and

bedrock walls and bottom. Mussel beds

are excellent indicators of riverine

habitat stability because freshwater

mussels may live in excess of 30 years,

and mussel beds require many decades

to develop (Neves 1993). Clean bedrock

has been identified as potential

Alabama sturgeon spawning habitat

(Mayden and Kuhajda 1996). The

significance of such areas of stability are

suggested by the location of recent and

historic Alabama sturgeon capture sites

below Millers Ferry and Claiborne locks

and dams. Dive surveys at 19 capture

sites dating back to 1950 found 17 in the

vicinity of dense mussel beds (15 sites)

and/or clean bedrock riverine habitat

(11 sites) (Hartfield and Garner 1998).

Depths at these areas (5 to 15 m (16 to

49 ft)) are well below the minimum

navigation maintenance depth of 3 m (9

ft).

Sand and gravel mining has had

historic impacts on riverine habitats in

the lower Tombigbee and Alabama river

channels. Instream dredging for sand

and gravel can result in localized

biological and geomorphic changes

similar to those caused by

channelization and navigation channel

development. For example, mining of

rivers has been shown to reduce fish

and invertebrate biomass and diversity

and can induce geomorphic changes in

the river channel both above and below

mined areas (Simons et al. 1982, Brown

and Lyttle 1992, Kanehl and Lyons

1992, Hartfield 1993, Patrick and Dueitt

1996). Sand and gravel dredging of the

Tombigbee and Alabama river channels

within the historic and current range of

the Alabama sturgeon has occurred

periodically since the 1930s (Simons et

al. 1982). We are not aware of any

currently active sand and gravel

dredging operations in the Alabama

River. However, mining of gravel from

stable river reaches used by the

Alabama sturgeon would be detrimental

to the species.

Water pollution may adversely impact

sturgeon (Ruelle and Keenlyne 1993)

and was likely a factor in the decline of

the Alabama sturgeon, especially prior

to implementation of State and Federal

water quality regulations. Currently, the

major sources of water pollution in

Alabama are agriculture, municipal

point sources, resource extraction, and

contaminated sediments, in order of

decreasing importance based on

numbers of miles impaired (Alabama

Department of Environmental

Management 1994). Water quality in the

lower Alabama River is generally good;

however, two localized river segments

above Claiborne Lock and Dam have

been reported in the past as occasionally

impaired due to excess nutrients and

organic enrichment (Alabama

Department of Environmental

Management 1994). Sources of

impairment were broadly identified as

the combined effects of industrial and

municipal discharges, and runoff from

agriculture and silviculture. These river

segments are also affected by

hydropower discharges from Millers

Ferry Lock and Dam. In 1994, an impact

analysis on Federal activities in the

Alabama River (Biggins 1994)

concluded that no information suggests

that current fish and wildlife standards

for water quality are not protective of

the Alabama sturgeon and that State

water quality standards would not need

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26455

to be increased should the sturgeon be

protected under the Act. No information

developed since 1994 suggests

otherwise.

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. As discussed in the

‘‘Background’’ section of this final rule,

the Alabama sturgeon was commercially

harvested around the turn of the

century. Alabama State law (sect. 220–

2–.26–4) now protects the Alabama

sturgeon and other sturgeons requiring

that * * * any person who shall catch

a sturgeon shall immediately return it to

the waters from whence it came with

the least possible harm. As a result,

sturgeon are not currently pursued by

commercial or recreational fishermen.

Nonetheless, Alabama sturgeon are

occasionally caught by fishermen in

nets or trot lines set for other species.

For example, one of the Alabama

sturgeons caught in 1995 was hooked by

a fisherman on a trot line, and the

Alabama sturgeon caught in 1996 was

trapped in a hoop net; both of these fish

were released. Doubtless, there have

been additional, undocumented

incidental captures by commercial and

sport fishermen. However, the surveys

and collection efforts of the past decade

have shown such captures to be rare.

C. Disease or predation. The Alabama

sturgeon has no known threats from

disease or natural predators. To the

extent that disease or predation occurs,

such threats become a more important

consideration as the total population

decreases in number.

D. The inadequacy of existing

regulatory mechanisms. As we

discussed under factor B, Alabama State

law (sect. 220–2–.26–4) protects the

Alabama sturgeon and other sturgeons

requiring that * * * any person who

shall catch a sturgeon shall immediately

return it to the waters from whence it

came with the least possible harm. As

a result, sturgeon are not currently

pursued by commercial or recreational

fishermen. State regulations, however,

do not generally protect the Alabama

sturgeon from other threats. Several

regulatory mechanisms currently benefit

the Alabama sturgeon and its habitat

(e.g., Clean Water Act and associated

State laws, Fish and Wildlife

Coordination Act, Federal Power Act,

National Environmental Policy Act,

Rivers and Harbors Act). However,

within the scope of other environmental

laws or Alabama State law, there is

currently no requirement to specifically

consider the effects of actions on the

Alabama sturgeon and ensure that a

project is not likely to jeopardize its

continued existence.

E. Other natural or manmade factors

affecting its continued existence. The

primary threat to the immediate survival

of the Alabama sturgeon is its small

population size and its apparent

inability to offset mortality rates with

current reproduction and/or recruitment

rates. As noted in the Background

section, incidents of capture of Alabama

sturgeon have been steadily diminishing

for the past two decades, indicating

declining population numbers over this

time. Studies also demonstrate that

small populations are inherently highly

vulnerable to extinction (Soule 1987). In

such cases, the species becomes very

vulnerable to natural or human-induced

events (e.g., droughts, floods,

competition, variations in prey

abundance, toxic spills), which may

further depress recruitment or increase

mortality (Belovsky 1987, Shaffer 1987).

Sturgeon species may be especially

vulnerable to small population size for

several reasons. Age at first spawning

(ranging from 5 to 7 years for shovelnose

sturgeon) is much delayed in

comparison to many other fishes, and

female sturgeons may not spawn for

intervals of several years (Wallus et al.

1990). A recent attempt to propagate

Alabama sturgeon at the Marion State

Fish Hatchery indicates that males may

not spawn annually as well. Thus, the

number of adult males and females

capable of reproducing in a given year

is much smaller than the actual

numbers of adult sturgeon present. Also,

recruitment success in fish is subject to

considerable natural variability owing to

fluctuations of environmental

conditions, and several years can pass

between periods of good recruitment.

Sturgeon may compensate for some of

these aspects of their natural history by

producing large quantities of eggs per

female. However, successful spawning

and production of large numbers of

offspring by a single or a few fish may

result in reduced genetic diversity for

the overall population.

Currently, no population estimates

exist for the Alabama sturgeon. Recent

collection efforts demonstrate its

increasing rarity. For example,

beginning in the spring of 1997 through

1999, up to four crews of professional

fisheries biologists have expended

approximately 4,000 man-hours of

fishing effort in the lower Alabama

River to capture Alabama sturgeon for

use as broodstock. This effort resulted in

the capture of only five Alabama

sturgeon, three of which have died in

captivity. An additional incidental catch

and release was reported by a

commercial fisherman. Thus,

approximately 18 months of fishing by

professional, commercial, and

recreational fishermen resulted in the

capture of only six Alabama sturgeon.

Compared to the estimated 20,000

Alabama sturgeon reported in the 1898

harvest, the amount of effort currently

required to capture Alabama sturgeon

indicates that the species’ population

numbers are extremely low. This

determination strongly indicates that

the Alabama sturgeon is highly

susceptible to the negative effects of a

small population size and this factor,

coupled with the reproduction

characteristics of its natural history,

renders the species very vulnerable to

extinction.

State Conservation Efforts

Section 4(b)(1)(A) requires us, in

making a listing determination, to take

into account efforts being made by the

State to protect the Alabama sturgeon.

In 1996, the ADCNR developed a

conservation plan for the Alabama

sturgeon that attempted to address the

most immediate threat to the species, its

small population size. A variety of

public and private groups, including the

Service, Army Corps of Engineers,

Geological Survey of Alabama, Auburn

University, the Alabama-Tombigbee

Rivers Coalition, and the Mobile River

Basin Coalition have participated in,

and/or endorsed, this plan. The

immediate focus of the plan is to

prevent extinction through a captive

breeding program and release of

propagated fish. Other objectives of the

plan include genetic conservation,

habitat restoration, and determining life

history information essential to effective

management of the species. A

freshwater sturgeon conservation plan

working group composed of scientists

and resource managers from a variety of

Federal and State agencies, industry,

and local universities was formed in

September 1996 to establish collection

and handling protocols, and to

recommend and participate in research

efforts. Implementation of the

conservation plan began in March 1997,

with broodstock collection efforts. To

date, five fish have been captured;

however, three of these have died. Two

male sturgeon are currently held at the

Marion State Fish Hatchery. The

hatchery has been upgraded to

accommodate sturgeon propagation. An

unsuccessful attempt to spawn the

captive sturgeon was conducted during

March 1999 (see Background section).

Coordinated studies are currently in

progress by the ADCNR, Corps, and us

to identify and quantify stable riverine

habitat in the Alabama River, and to

develop strategies for its management.

Life history and habitat studies in

progress include habitat

26456 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

characterization at historic sturgeon

collection sites, prey density studies,

and larval sturgeon surveys. To date, the

1997 Conservation Plan has not been

successful in decreasing the threat of

extinction to where protection under the

Act is no longer warranted.

On February 9, 2000, the ADCNR, the

Corps, the Alabama-Tombigbee Rivers

Coalition, and the Service signed a

formal 10-year Conservation Agreement

and Strategy for the Alabama Sturgeon.

The goal of the 10-year Conservation

Agreement Strategy is to eliminate or

significantly reduce current threats to

the Alabama sturgeon and its habitat.

Attaining the goal of the Conservation

Agreement Strategy will require

accomplishment of the following

objectives: (1) Restore and maintain

sufficient numbers of Alabama sturgeon

in the lower Alabama River to ensure its

long-term survival by increasing the

numbers of sturgeon through hatchery

propagation and augmentation; and (2)

identify and protect existing occupied

Alabama sturgeon habitat quantity and

quality, develop information on the

sturgeon’s life history and habitat needs,

and use this information to implement

appropriate conservation measures and

adaptive management strategies for the

Alabama sturgeon and its habitat. The

objectives will be accomplished through

implementation of the Conservation

Agreement Strategy for the Alabama

Sturgeon.

The Conservation Agreement Strategy

for the Alabama Sturgeon describes

specific actions and strategies required

to expedite implementation of

conservation measures for the Alabama

sturgeon to ensure the long-term

viability of the species, and to establish

benchmarks to measure the success of

the program. The general conservation

goals are to increase sturgeon numbers

to a viable, self-sustaining level;

maintain habitat currently occupied by

the sturgeon; conduct research

necessary to understand sturgeon life

history and ecology and use this

information to manage the species;

identify occupied habitat within the

lower Alabama River that might support

sturgeon with appropriate management;

and insure sturgeon accessibility to

essential habitat that is identified

through research.

The success of implementation during

the life of the Agreement and Strategy

will be measured by annual reviews to

address the following: (1) Successful

collection of broodstock; (2) successful

hatchery propagation; (3) initial

augmentation of the remaining wild

stock of the species with hatcheryspawned Alabama sturgeon; (4)

protection of existing occupied habitat;

(5) extending knowledge of the species’

natural history, life cycle, and ecological

needs; and (6) development and

implementation of appropriate adaptive

management strategies to conserve the

species.

Implementation of the Conservation

Agreement Strategy is the most viable

approach to conservation of the

Alabama sturgeon, based on current

technology and information. However,

the certainty on the effectiveness of

these efforts in removing existing threats

remain unproven and dependent upon

many factors beyond human control.

Therefore, the Alabama sturgeon still

warrants protection under the Act (see

responses to Issues 62 to 66).

The Mobile River Basin Aquatic

Ecosystem Recovery Coalition, a

partnership comprising diverse

business, environmental, private

landowner, and agency interests, has

been meeting regularly to participate in

recovery planning for 15 listed aquatic

species in the Basin (U.S. Fish and

Wildlife Service 1998). The Coalition

promotes increased stewardship

awareness by private landowners

throughout the Basin, and encourages

the control of non-point source

pollution through the implementation of

Best Management Practices. All aquatic

habitats, including Alabama sturgeon

habitat, will benefit from such efforts.

In determining to make this rule final,

we have carefully assessed the best

scientific and commercial information

available regarding the past, present,

and future threats faced by the Alabama

sturgeon, while taking into account

ongoing conservation efforts and

commitments by the State and others.

Based on our evaluation, the most

appropriate action is to list the Alabama

sturgeon as endangered. The Act defines

an endangered species as one that is in

danger of extinction throughout all or a

significant portion of its range. The

species is currently limited in

distribution to a small portion of its

historic range and is blocked by dams

from recolonizing other portions of that

range. Whether the quantity of habitat

currently available to the Alabama

sturgeon is adequate to meet the needs

of a self-sustaining population is

unknown. In addition, the Alabama

sturgeon is vulnerable to extinction due

to its small population size, aggravated

by certain characteristics of its

reproduction. Ongoing conservation

efforts to increase sturgeon numbers

have to date met with limited success.

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (I) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management consideration or

protection; and (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. Conservation means the use of

all methods and procedures needed to

bring the species to the point at which

listing under the Act is no longer

necessary.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. Section 4(b)(2) of the Act

requires us to consider economic and

other relevant impacts of designating a

particular area as critical habitat on the

basis of the best scientific data available.

The Secretary may exclude any area

from critical habitat if he determines

that the benefits of such exclusion

outweigh the benefits of its inclusion,

unless to do so would result in the

extinction of the species. Our

regulations (50 CFR 424.12(a)(2)) state

that critical habitat is not determinable

if information sufficient to perform the

required analysis of the impacts of the

designation is lacking or if the biological

needs of the species are not sufficiently

well known to permit identification of

an area as critical habitat.

In the proposed rule, we found that

critical habitat designation for the

Alabama sturgeon was not prudent

because we believed it would provide

no additional benefit beyond that of the

listing. We also indicated that the

designation of critical habitat was not

prudent because of our concern that

such designation could harm the species

as a result of adverse public reaction

and loss of cooperation by fishermen

and other partners in ongoing

conservation efforts. However, during

the open comment period, we received

numerous comments favoring critical

habitat designation for the Alabama

sturgeon. Commercial fishermen also

continued to cooperate in conservation

actions during the open comment

period. Due to this response, we no

longer believe that any significant

adverse public reaction will result from

the designation of critical habitat for the

Alabama sturgeon.

In the absence of a finding that critical

habitat would increase threats to a

species, if any benefits would result

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26457

from critical habitat designation, then a

prudent finding is warranted. In the

case of the Alabama sturgeon,

designation of critical habitat may

provide some benefits. The primary

regulatory effect of critical habitat is the

section 7 requirement that Federal

agencies refrain from taking any action

that destroys or adversely modifies

critical habitat. While a critical habitat

designation for habitat currently

occupied by this species would not be

likely to change the section 7

consultation outcome because an action

that destroys or adversely modifies such

critical habitat would also be likely to

result in jeopardy to the species, in

some instances, section 7 consultation

might be triggered only if critical habitat

is designated. Examples could include

unoccupied habitat or presently

occupied habitat that may become

unoccupied in the future. In addition,

some educational or informational

benefits may result from designating

critical habitat. Therefore, we now find

that critical habitat designation is

prudent, but not determinable, for the

Alabama sturgeon.

Section 4(b)(6)(C) of the Act provides

that a concurrent critical habitat

determination is not required with a

final regulation implementing

endangered status and that the final

designation may be postponed for one

additional year beyond the period

specified in section 4(b)(6)(A), if (I) a

prompt determination of endangered or

threatened status is essential to the

conservation of the species, or (ii)

critical habitat is not then determinable.

We believe that a prompt determination

of endangered status for the Alabama

sturgeon is essential to its conservation.

Listing the sturgeon will augment

protection for the species, require

consideration by Federal agencies of the

effects of their actions on its survival,

and allow recovery planning to proceed,

while allowing us additional time to

evaluate critical habitat needs. While we

received a number of comments

advocating critical habitat designation,

none of these comments provided

information that added to our ability to

determine critical habitat. Additionally,

we did not obtain any new information

regarding specific physical and

biological features essential for the

Alabama sturgeon during the open

comment period or the public hearing.

The biological needs of the Alabama

sturgeon are not sufficiently well known

to permit identification of areas as

critical habitat. Insufficient information

is available on spawning and juvenile

habitat, instream flow needs, water

quality, and other essential habitat

features. Through ongoing studies we

are attempting to better ascertain the

biological needs of the Alabama

sturgeon and the habitat essential to

those needs. This information is

considered essential for determining

critical habitat. Prior to a final

designation, maps of proposed critical

habitat, identification of essential

features, and an economic analysis of

any incremental regulatory effects

(additive to the species listing) will be

released for public review and

comment. Protection of Alabama

sturgeon habitat will be provided during

the interim through the recovery

process, the section 7 consultation

process, and section 9 prohibitions on

take.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, State, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the States and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is listed as endangered or

threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(2) requires Federal

agencies to ensure that activities they

authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify its critical habitat.

If a Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency must enter

into formal consultation with us.

Federal activities that could occur and

impact the Alabama sturgeon include,

but are not limited to, the carrying out

or the issuance of permits for reservoir

construction, stream alterations,

discharges, wastewater facility

development, water withdrawal

projects, pesticide registration, mining,

and road and bridge construction. In our

experience, nearly all section 7

consultations have been resolved so that

the species have been protected and the

project objectives have been met.

In addition, section 7(a)(1) of the Act

requires all Federal agencies to review

the programs they administer and use

these programs in furtherance of the

purposes of the Act. All Federal

agencies, in consultation with us, are to

carry out programs for the conservation

of endangered and threatened species

listed pursuant to section 4 of the Act.

The Act and its implementing

regulations found at 50 CFR 17.21 set

forth a series of general prohibitions and

exceptions that apply to all endangered

wildlife. These prohibitions, in part,

make it illegal for any person subject to

the jurisdiction of the United States to

take (includes harass, harm, pursue,

hunt, shoot, wound, kill, trap, or collect;

or to attempt any of these), import or

export, ship in interstate commerce in

the course of commercial activity, or sell

or offer for sale in interstate or foreign

commerce any endangered wildlife. To

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally is also is illegal. Certain

exceptions apply to our agents and

agents of State conservation agencies.

Our policy, as published in the

Federal Register on July 1, 1994 (59 FR

34272), is to identify, to the maximum

extent practicable, those activities that

would or would not constitute a

violation of section 9 of the Act for this

species. The intent of this policy is to

increase public awareness as to the

effects of this final listing on future and

ongoing activities within this species’

range.

We believe, based on the best

available information, that the following

activities are unlikely to result in a

violation of section 9:

(1) Discharges into waters supporting

the Alabama sturgeon, provided these

activities are carried out in accordance

with existing regulations and permit

requirements (e.g., activities subject to

section 404 of the Clean Water Act and

discharges regulated under the NPDES);

(2) Continuation of ongoing

maintenance dredging of

unconsolidated sediments undertaken

or approved by the Corps of Engineers;

(3) Development and construction

activities designed and implemented in

accordance with State and local water

quality regulations and implemented

using approved Best Management

Practices;

(4) Lawful commercial and sport

fishing for species other than Alabama

sturgeon, provided any Alabama

sturgeon caught are immediately

released unharmed; and

(5) Actions that may affect the

Alabama sturgeon and are authorized,

26458 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

funded, or carried out by a Federal

agency when the action is conducted in

accordance with an incidental take

statement issued by us pursuant to

section 7 of the Act.

Activities that we believe could

potentially result in take of the Alabama

sturgeon include:

(1) Illegal collection of the Alabama

sturgeon;

(2) Unlawful destruction or alteration

of the Alabama sturgeon’s habitat (e.g.,

un-permitted instream dredging,

channelization, discharge of fill

material); and

(3) Illegal discharge or dumping of

toxic chemicals or other pollutants into

waters supporting the Alabama

sturgeon.

Other activities not identified above

will be reviewed on a case-by-case basis

to determine if a violation of section 9

of the Act may be likely to result from

such activity. We do not consider these

lists to be exhaustive and provide them

as information to the public.

You should direct questions regarding

whether specific activities will

constitute a violation of section 9 to the

Field Supervisor, U.S. Fish and Wildlife

Service, P.O. Box 1190, Daphne, AL

36526 (telephone 334/441–5181), or to

the Field Supervisor of the Service’s

Mississippi Field Office (see ADDRESSES

section).

We may issue permits to carry out

otherwise prohibited activities

involving endangered wildlife species

under certain circumstances.

Regulations governing permits are

codified at 50 CFR 17.22. You may

obtain permits for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities. Send requests for copies of

regulations regarding listed species and

inquiries about prohibitions and permits

to the U.S. Fish and Wildlife Service,

Ecological Services Division, 1875

Century Boulevard, Suite 200, Atlanta,

Georgia 30345 (telephone 404/679–

7358; facsimile 404/679–7081).

National Environmental Policy Act

We have determined that

Environmental Assessments and

Environmental Impact Statements, as

defined under the authority of the

National Environmental Policy Act of

1969, need not be prepared in

connection with regulations adopted

pursuant to section 4(a) of the Act. We

published a notice outlining our reasons

for this determination in the Federal

Register on October 25, 1983 (48 FR

49244).

Paperwork Reduction Act

This rule does not contain any new

collections of information other than

those already approved under the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned Office of

Management and Budget clearance

number 1018–0094. An agency may not

conduct or sponsor, and a person is not

required to respond to, a collection of

information unless it displays a

currently valid control number. For

additional information concerning

permit and associated requirements for

endangered species, see 50 CFR 17.22.

References Cited

You may request a complete list of all

references cited in this document, as

well as others, from the Mississippi

Field Office (see ADDRESSES section).

Author: The primary author of this

document is Paul Hartfield (see

ADDRESSES section) (601/321–1125).

Introduction to the White Paper

(Biggins 1994)

Below is a document entitled Federal

Activities That May Affect the Alabama

Sturgeon and Anticipated Section 7

Consultations on These Activities. This

document was developed jointly by

representatives from the Corps and the

Service in 1994 in response to concerns

raised during public comment periods

on the 1993 proposed rule to list the

Alabama sturgeon as an endangered

species. The document finalized on

November 18, 1994, was referred to in

the 1999 proposed rule to list the

Alabama sturgeon as an endangered

species and in this final rule as ‘‘Biggins

1994,’’ and has become widely known

as the White Paper.

The White Paper carefully reviews the

anticipated impacts of a variety of

activities in the lower Alabama River to

the Alabama sturgeon. To summarize,

the 1994 White Paper found the

following: (1) Based on the information

available at the time, the Corps’ annual

maintenance dredging program was not

likely to adversely affect the Alabama

sturgeon. However, the Corps, in

conjunction with the Service, agreed to

pursue research to more fully evaluate

impacts of maintenance dredging

activities, particularly with regard to

turbidity issues. (2) While removal of

rock shelves may adversely affect the

Alabama sturgeon, concerns can be

adequately addressed through routine

consultation between the Corps and the

Service, and this consultation is not

likely to result in a jeopardy situation or

delays in activities. (3) While channel

training devices could reduce impacts to

the Alabama sturgeon, additional

training devices are not required to

avoid jeopardy to the species. (4) The

removal of unconsolidated materials

from the river bottom through nonFederal maintenance dredging activities

is not considered a direct threat to the

Alabama sturgeon. (5) Current flow

patterns are likely adequate to sustain

the Alabama sturgeon where it is

currently known to occur. (6) There is

no need to modify the State’s water

quality standards to protect the Alabama

sturgeon. (7) Direct or indirect impacts

to the Alabama sturgeon from coalbed

methane extraction are not anticipated.

(8) In-stream gravel mining may

adversely affect the Alabama sturgeon

and would need to be addressed

through consultation. (9) The Alabama

sturgeon would need to be considered

under other non-Federal activities

permitted by the Corps; however, delays

in activities are not anticipated.

The findings of the White Paper have

been affirmed, reviewed, and reaffirmed

through a variety of correspondence

between the Corps and us over the last

5 years. Immediately following the

finalization of the White Paper, in a

letter dated November 23, 1994, the

Corps determined that maintenance

dredging and disposal activities had no

effect on the Alabama sturgeon. We

supported that determination in a letter

dated November 28, 1994. Between

October 1998 and April 1999, we and

the Corps again carefully reviewed the

details and findings of the White Paper

(four letters—Service, October 21, 1998;

Corps, December 21, 1998; Corps,

February 2, 1999; and Service, April 7,

1999). These letters are all part of the

administrative record for this final rule,

and summarily clarify and reaffirm the

findings of the White Paper.

The findings of the White Paper

relative to the annual maintenance of

the existing navigation channel of the

Alabama River were further supported

through an exchange of letters from the

Service’s Southeast Regional Director,

Sam D. Hamilton (June 24, 1999 and

February 1, 2000) and the Corps’

Division Engineer, Brigadier General J.

Richard Capka (November 15, 1999). In

these exchanges, Regional Director

Hamilton affirmed that the annual

navigation channel maintenance

dredging programs would have no effect

on the Alabama sturgeon and would not

need to be eliminated, modified, or

altered should the Alabama sturgeon be

listed. Brigadier General Capka

concurred with this finding and

requested that the White Paper be

published in its entirety with the final

rule. In response to this request, the

White Paper follows in its entirety.

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26459

Finally, this latest exchange of letters

between Regional Director Hamilton

and Brigadier General Capka identified

the need for a Memorandum of

Agreement between the two agencies to

ensure open communication and

formalize a cooperative process for

dealing with new information that may

alter the earlier no effect finding. The

Service and Corps are currently drafting

this agreement.

The White Paper (Biggins 1994)

Federal Activities That May Affect The

Alabama Sturgeon and Anticipated

Section 7 Consultations on These

Activities

Annual maintenance dredging by the

Corps: Maintenance dredging by the

U.S. Army Corps of Engineers (Corps) to

maintain the navigation channel on the

Alabama and lower Tombigbee Rivers

annually removes 1.5 to 3.8 million

cubic meters (2 to 5 million cubic yards)

of unconsolidated aggregate (e.g., sand,

mud, and silt). Dredge material from the

Tombigbee River downstream of

Coffeeville, Alabama, is disposed of at

upland sites and within the banks of the

river. On the Alabama River, fewer

upland disposal areas have been

established, and the majority of the

dredge materials is placed within the

shallow reaches of the river.

Based on limited information on the

Alabama sturgeon and studies of the

shovelnose sturgeon, it appears that

these fish require currents over

relatively stable substrates for feeding

and spawning. They are generally not

associated with those unconsolidated

substrates that settle in slower current

areas and must be removed annually to

maintain navigation. Therefore, removal

and disposal of unconsolidated

materials is not perceived as a threat to

the sturgeon or to its feeding or

spawning habitat.

In the proposed rule, the U.S. Fish

and Wildlife Service (Service) expressed

concern that turbidity increases

associated with the Corps’ annual

maintenance dredging could affect the

sturgeon, and the Service still has some

concern regarding this issue. However,

based on the fact that (1) The Alabama

and Tombigbee Rivers are currently

characterized as turbid rivers; (2)

channel maintenance activities produce

only localized and temporary elevation

of turbidity; (3) the extent to which

turbidity impacts the Alabama sturgeon

is unknown; and (4) the Corps in

cooperation with the Service has agreed

to pursue research (within three years

and based on the availability of funds)

regarding the potential impacts of

maintenance dredging activities,

including turbidity, on the shovelnose

sturgeon, the Service has concurred

with the Corps’ determination that

based on current information their

annual maintenance dredging program

does not adversely affect the Alabama

sturgeon.

Thus, as it is currently believed that

the Corps’ annual maintenance dredging

program on the Alabama and lower

Tombigbee Rivers is not likely to affect

the Alabama sturgeon, these channel

maintenance activities will not need to

be eliminated, modified in timing or

duration, or altered to protect the

Alabama sturgeon. Therefore, no loss of

revenue from diminished annual

channel maintenance activities will be

associated with the listing of the

Alabama sturgeon.

Maintenance dredging by the Corps to

remove rock shelves: The Alabama and

Tombigbee Rivers naturally move

laterally, and to some extent, vertically.

This natural river channel movement

exposes rock shelves at the outer bends

of the river. In order to provide for a

reliable and safe navigation channel,

these rock shelves must sometimes be

removed, and similar channel alignment

improvements of covered consolidated

material are sometimes necessary on the

inside bends. Although the removal of

these obstructions to navigation are

usually infrequent and restricted to

isolated areas, this activity may

adversely affect the Alabama sturgeon.

The Corps and the Service have

discussed the potential impacts to the

Alabama sturgeon of removing these

rock shelves, and both agencies agree

that section 7 consultation will be

required prior to the commencement of

any rock shelf removal project within or

adjacent to potential Alabama sturgeon

habitat. However, since both agencies

agree that rock shelf removal projects

are generally not emergency projects,

there will be a sufficient period of time

prior to the next dredging season for

both agencies to consider the timing and

habitat improvements which may be

possible by the design and construction

of the remaining shelf after excavation

and by selective placement of the

excavated material. Thus, the Service

does not anticipate that these

consultations will result in a jeopardy

situation or result in delays in these

maintenance dredging activities.

Use of training devices by the Corps:

In the proposed rule, the Service cited

studies by the Corps and others that the

use of channel-training devices (e.g.,

training dikes, jetties, sills, and

revetments) in several rivers in the

eastern half of the United states reduced

dredging requirements by over 50

percent. The Corps’ own data stated that

structures in the Alabama River were

assumed to eliminate about 60 percent

of dredging requirements at the specific

location where such structures were

designed and constructed in the last

phase of training works on the Alabama

River. The present system on the

Alabama River consists of 67 channel

training works at 16 locations. The

Corps has subsequently stated that

based on the Mobile District’s criteria

for the use of training works, these

structures are already used to the

maximum extent practicable. However,

the Service understands that the Corps

will continue to evaluate their use, will

modify existing structures as necessary,

and may construct additional training

devices when justified.

Although the Service believes that

training devices could reduce impacts to

the Alabama sturgeon and encourages

the Corps to consider their use in future

planning, the Service does not believe

that more training devices are required

to avoid jeopardy to the Alabama

sturgeon.

Maintenance dredging for nonFederal activities: The Corps authorizes

maintenance dredging for non-Federal

navigation projects. Although these

projects are usually on a much smaller

scale that the Corps’ annual

maintenance dredging activities, they

involve the removal of unconsolidated

aggregate from navigable waters of the

United States and include the discharge

of some material back into the

waterways. Thus, maintenance dredging

by non-Federal entities comes under the

Corps’ authority pursuant to section 10

of the RHA (33 U.S.C. 403) and section

404 of the CWA (33 U.S.C. 1344).

Maintenance dredging by non-Federal

entities for navigation removes

unconsolidated aggregate (e.g., sand,

mud, and silt) that washes down from

upstream portions of the river and from

tributaries. Based on limited

information on the Alabama sturgeon

and studies of the shovelnose sturgeon,

it appears that these fish require

currents over relatively stable substrates

for feeding and spawning. They are

generally not associated with the

unconsolidated substrates that settle in

slower current areas. Therefore, removal

of unconsolidated materials is not

considered as a direct threat to the

sturgeon or to its feeding or spawning

habitat.

Prior to the Corps’ issuance of a

section 404 permit for non-Federal

maintenance dredging, the applicant

must receive State water quality

certification from the State of Alabama

pursuant to section 401 of the CWA. As

the Service does not believe that more

restrictive water quality standards will

26460 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations

be needed to protect the Alabama

sturgeon from this activity, the

likelihood of an applicant receiving a

State water quality certification will not

be affected by the listing of the Alabama

sturgeon. Additionally, as addressed

above under Annual maintenance

dredging by the Corps, temporary

increases in turbidity associated with

maintenance dredging activities are nor

currently believed to adversely affect

the Alabama sturgeon; and as dredge

material from non-Federal maintenance

dredging projects is traditionally

disposed of at upland sites, potential

impacts to the sturgeon are further

reduced.

Changes in river flow patterns: A

series of dams now control water flows

in much of the Mobile River system.

Changes in the natural flow patterns

have probably had both direct and

indirect effects on the Alabama sturgeon

and its habitat. In the proposed rule, it

was stated that The Service expects that

continuous minimum flows of

approximately 3,000 [cfs] will be

required [to sustain the Alabama

sturgeon] below both Robert F. Henry

and Millers Ferry Locks and Dams on

the lower Alabama River and that

* * *minimum flows below Claiborne

Lock and Dam are already maintained at

approximately 5,000 cfs to provide for

cooling water intake of downstream

industry. Although the Service concedes

that little information on the flow needs

of the sturgeon is available, a minimum

figures of 90 cms (3,000 cfs) was arrived

at by Service and other biologists

familiar with the Alabama River and its

fish populations.

The Service now has evidence of the

continued existence of the Alabama

sturgeon in the free-flowing portion of

the Alabama River downstream of

Claiborne Lock and Dam and that the

Alabama Power Company (APC),

through an agreement with the Corps,

attempts to maintain (for the purposes

of navigation) a minimum average daily

flow of approximately 149 cms (4,640

cfs) over any seven consecutive day

period and a minimum average daily

flow of approximately 81 cms (2,667 cfs)

over any three consecutive day period

downstream of Claiborne Lock and

Dam. Further, the average daily flows

over the last decade downstream of

Claiborne Lock and Dam have ranged

from 114 to 6,912 cms (3,800 to 244,000

cfs). Therefore, the Service believes that

the minimum average daily flows, as

agreed to by the Corps and the APC,

coupled with historic and Federal

Energy Regulatory Commission ordered

flow patterns, are likely adequate to

sustain the Alabama sturgeon in this

river reach.

The Service’s opinion on flow

requirements for river segments

upstream of Claiborne Lock and Dam, as

stated in the proposed rule, has changed

somewhat. The Service’s position

remains that the best biological

judgement at this time is that a

minimum average daily flow of

approximately 90 cms (3,000 cfs) from

the Robert F. Henry and Millers Ferry

Locks and Dams would be required to

maintain a population of the Alabama

sturgeon upstream of Claiborne Lock

and Dam. However, the continued

existence of the sturgeon upstream of

Claiborne Lock and Dam has not been

substantiated in nearly a decade,

although anecdotal evidence exists.

Therefore, based on our current

knowledge of the Alabama sturgeon and

its distribution, no changes in water

releases from these structures or from

structures located in the headwaters of

the Alabama River system (e.g., Coosa

and Tallapoosa Rivers) are being

suggested for the benefit of the sturgeon

nor are they anticipated by the Service

as a result of this listing. Thus, without

changes in flow releases from powergenerating dams, there should be no loss

of electrical power revenue resulting

from listing the Alabama sturgeon.

State water quality standards:

Although it is possible that some pointsource discharges negatively impact the

Alabama sturgeon, there is no evidence

to support the conclusion that the

State’s water quality standards must be

changed if the fish is listed. As

discussed in the proposed rule, the

potential exists for point discharges to

impact the Alabama sturgeon, and it is

noted that there is an increasing

demand for discharge permits in the

Mobile River system. However, there are

two factors that work to minimize any

impacts to this fish from point-source

discharges: (1) As the Alabama sturgeon

inhabits larger channel areas, the effects

of any point discharge into its habitat

would likely be minimized by dilution

and (2) the State of Alabama, with

assistance from and oversight by the

EPA, sets water quality standards that

are presumably protective of aquatic

life.

It is the Service’s position, as stated

in the proposed rule, that as long as

current fish and wildlife standards

under the CWA are used to issue

discharge permits and the conditions of

the permits are enforced, there is no

need to modify the State’s water quality

standards to protect the Alabama

sturgeon. A violation of State water

quality standards would be a violation

of the CWA, and listing the Alabama

sturgeon could potentially increase

noncompliance penalties. However, the

listing, based on current information,

would not increase the need for changes

in State water quality standards.

Coalbed methane: The extraction of

coalbed methane can necessitate the

release of produced water into the

environment, and this discharge was

mentioned as a potential threat to the

Alabama sturgeon in the proposed rule.

The Corps authorizes produced-water

discharge structures pursuant to section

10 of the Rivers and Harbors Act of 1899

(33 U.S.C. 403) if the outfall structure is

placed into navigable waters of the

United States. The Corps typically

authorizes these structures with a Letter

of Permission. Letters of Permission are

a type of permit issued through an

abbreviated processing procedure that

includes coordination with Federal

(including the Service) and State fish

and wildlife agencies, as required by the

Fish and Wildlife Coordination Act, and

a public interest evaluation, but without

publishing an individual public notice.

Letters of Permission may be used in

those cases subject to section 10 when,

in the opinion of the District Engineer,

the proposed work would be minor,

would not have significant individual or

cumulative impacts on environmental

values, and should encounter no

appreciable opposition. Additionally,

prior to discharge, the applicant must

receive a permit from the State of

Alabama under NPDES guidelines. As

the Alabama sturgeon exists far

downstream of these permit activities,

the Service does not believe that any

modification to existing discharge

structure authorization procedures is

needed to protect the Alabama sturgeon.

The potential coalbed methane wells

are far upstream of known Alabama

sturgeon habitat and any discharge must

meet State water quality standards (the

Service has stated that the water quality

standards will not have to be modified

in order to protect the Alabama

sturgeon). Therefore, the Service does

not anticipate any direct or indirect

impacts to the Alabama sturgeon from

properly permitted produced-water

discharges.

Gravel mining: In-stream gravel

mining involves work in navigable

waters of the United States and includes

the discharge of the noncommercial

dredge material back into the waterway.

Thus, in-stream gravel mining comes

under the Corps’ authority, pursuant to

section 10 of the RHA (33 U.S.C. 403)

and section 404 of the CWA (33 U.S.C.

1344). The Service believes that the

Alabama sturgeon likely uses relatively

stable substrate for breeding and feeding

habitat. Thus, mining of this stable

substrate could threaten the species.

However, the Service believes the

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Rules and Regulations 26461

mining of unconsolidated material or

relatively stable material that is covered

by several inches of fine sediment

would not be likely to jeopardize the

species’ continued existence.

Prior to the issuance of a permit by

the Corps for in-stream gravel mining,

the applicant must receive State water

quality certification from the State of

Alabama pursuant to section 401 of the

CWA. As the Service does not believe

that more restrictive water quality

standards will be needed to protect the

Alabama sturgeon from this activity, the

likelihood of an applicant’s receiving

State water quality certification will not

be affected by the listing of the Alabama

sturgeon. However, as in-stream gravel

mining generally produces higher

turbidity levels than are produced by

maintenance dredging, the Service

believes that increases in turbidity

within Alabama sturgeon habitat from

in-stream gravel mining activities could

be considered a ‘‘may adversely affect

situation that the Corps would need to

address through section 7 consultation

with the Service. However, the Service

does not anticipate that turbidity

produced from gravel-mining of

unconsolidated substrates would likely

jeopardize the continued existence of

the Alabama sturgeon.

Other regulatory activities of the

Corps: The Corps authorizes other nonFederal activities (e.g., pipelines, piers,

wharfs, and small boat channels) within

waters of the United States within the

historic range of the Alabama sturgeon.

These non-Federal activities are

regulated through the Corps’ regulatory

program and evaluated on a case by case

basis. Although these activities are on a

much smaller scale than most other

activities authorized by the Corps, these

actions are more numerous and

therefore could present a greater number

of opportunities for the Service to

consider impacts to the sturgeon. Thus,

concern has been expressed that if the

Alabama sturgeon is listed permit

applicants will be burdened by time

delays and by requirements to conduct

sturgeon surveys. The Service

recognizes that some of the non-Federal

activities authorized by the Corps (e.g.,

bridge pier placement and pipeline

crossings) in the Alabama River system

could be delayed by a requirement to

conduct endangered species surveys

(Alabama sturgeon plus other listed

species). However, it has been the

experience of the Service that most of

these non-Federal activities do not

require a survey and further are not

delayed because of endangered species

issues.

Prepared: November 18, 1994.

This document [White Paper] was

prepared jointly by the Fish and

Wildlife Service and the U.S. Army

Corps of Engineers in accordance with

the September 1994 Memorandum of

Understanding on Implementation of

the Endangered Species Act.

By: Richard Biggins, U.S. Fish and

Wildlife Service, Asheville Field Office,

330 Ridgefield Court, Asheville, North

Carolina 28806 (telephone: 704/665–

1195 ext. 228, facsimile: 704/665–2782)

Note: Material contained in this document

will be included in any final Alabama

sturgeon rule that might be produced by the

Service.

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Regulation Promulgation

Accordingly, we amend part 17,

subchapter B of chapter I, title 50 of the

Code of Federal Regulations, as follows.

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Amend § 17.11(h) by adding the

following to the List of Endangered and

Threatened Wildlife, in alphabetical

order under FISHES:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

Fishes:

*******

Sturgeon, Alabama.Scaphirhynchus

suttkusi.

U.S.A. (AL, MS) ...... Entire ...................... E 697 NA NA

*******

Dated: April 30, 2000.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 00–11131 Filed 5–2–00; 8:45 am]

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