Atlantic Sturgeon –Listing under the 

Endangered Species Act

March 15, 2012
• March 2007 – NMFS, FWS, USGS completed status review• October 6, 2009 – Natural Resources Defense Council petitioned NO

list Atlantic sturgeon under the ESA and designate critical habitat

• January 6, 2010 – NOAA Fisheries published positive 90-day finding 

Register indicating petitioned action may be warranted; petition estabtimeline for publication of proposed listing determination by October 

• October 6, 2010 - Proposed rules published ( 75 FR 61872 and 75 F• February 6, 2012 - Final rules published (77 FR 5880 and 77 FR 591• April 6, 2012 – Effective date of the listings

Timeline: Listing Atlantic Stu
Listing is for 5 Distinct Population Segments (DPSs) 

Gulf of Maine DPSNew York Bight DPSChesapeake Bay DPSCarolina DPSSouth Atlantic DPSMarine range for all DPSs 

extends from Canada to FL
Five Factors under the 

• Factor A - poor water quality, dredging, dams/barriers preve

important spawning habitat, and water availability (in the Souallocation for municipal, industrial, and agricultural uses, as wdrought and climate change 

• Factor B - bycatch in commercial and recreational fisheries i

significant threat – sink gill net fisheries (e.g., monkfish, dogfsignificant sources of mortality

• Factor C – disease and predation are not affecting the long t

persistence of the species

• Factor D - primary threats identified above are not adequate

through existing regulatory mechanisms

• Factor E - Current impacts from vessel strikes represent a su

risk to the long-term persistence of the Chesapeake Bay and Bight Distinct Population Segments
Conservation Efforts

• 1998 Amendment to the Atlantic States Marine Fisheries C

Fishery Management Plan

• Penobscot River Restoration Project• Multi-state conservation program (Maine, New Hampshire

Massachusetts)

• Hudson River Estuary Management Plan• James River Restoration Plan• St. Mary’s Fish Restoration Committee Project• Ongoing research efforts in many river systems provide m

information.

Conclusion: While these efforts provide some benefit to A

sturgeon, they do not obviate the need to list them und
Gulf of Maine Distinct PoSegment

• Significant risk from bycatch; moderate risk from water qualit

dredging

• Spawning known to occur in only 1 spawning river, possibly • Positive signs include observations of Atlantic sturgeon in riv

which sturgeon observations have not been reported for man

potentially higher catch-per-unit-effort levels than in the past 

• These signs coupled with the fact that some of the threats to 

Population Segment are moderate led to the conclusion that is likely to become endangered in the foreseeable future, buendangered

Conclusion: Gulf of Maine DPS Threatened
New York Bight & ChesapeaBay Distinct Population Seg

• Spawning populations are thought to be one to two orders 

magnitude below historical levels

• Significant risks posed by bycatch, water quality, vessel st

dredging

• Spawning occurs in two rivers in the New York Bight Distin

Population Segment and at least one river in the ChesapePopulation Segment

Conclusion: NYB and CB DPSs endangered
Carolina and South Atlantic Distinct Population Segmen

• Estimated to be between 1% and 6% of historical populatio

abundance

• Significant risks posed by dams, dredging, reduced water 

quantity, bycatch, and the inadequacy of regulatory mechacontrol these threats.

• Spawning occurs in 11 rivers in the Southeast, but spawni

populations have been extirpated in 5 to 9 rivers in the Sou

Conclusion: Carolina and SA DPSs endangered
Comments and Concerns fropublic

• Atlantic States Marine Fishery Commission opposed the listi

management measures they have implemented

• Reasons cited for opposing the listing by some states and so

of the general public:

• lack of data• the methods used to determine the Distinct Population Segmen• disagreement with the threats assessment (e.g., water quality i

bycatch is not as high as reported in the proposed rules)

• listing will not prevent impacts to the species but will delay nece

research and cause economic hardship

• Atlantic States Marine Fishery Commission coast-wide morator

and the Commission should remain the sole management authAtlantic sturgeon

• no new information between1998 and now to suggest that listin

sturgeon is warranted
Additional actions follthe listing

• Critical habitat: must be designated within1 year of the final listing 

February 6, 2013)

• “Five –year status reviews”: required to ensure accuracy of listing 

classifications

• Recovery Planning: 

• Draft Recovery Plan should be completed 18 months after lis

Plan completed 2.5 years after listing

• Recovery Team will develop down-listing and de-listing criteri

needed to achieve recovery

• ASMFC’s sturgeon technical committee and States will have 

Plan

• Public input and engagement is sought in the recovery planni
Questions?
Post listing

• Coordination with Fishery Management Co

states, ASMFC

• Final 4(d) rule• Scientific research permits• Section 7 consultation 
Coordination

• Coordinate with other federal agencies (Secti

• Webinar/conference call - 3/26

• Coordinate with states and ASMFC to address ta

fisheries and other activities (Sections 6 & 10)

• Webinar/conference call – 3/22
Section 6

• Cooperative agreement between NMFS and state to work 

collaboratively to enhance the conservation of threatened, e

candidate, and proposed species. 

• Up to the state to implement and maintain an active conserv

program. 

• States with cooperative agreements may compete for federa

through the annual Species Recovery Grants to States oppo

• Delaware, Maine, Maryland, Massachusetts, New Jersey, N

and Virginia currently have cooperative agreements with NM

• Agreements reviewed on annual basis to ensure that states 

maintaining active and effective conservation programs for lspecies.
Section 10

• Individuals planning to conduct any activity resultin

"take" of an endangered or threatened species mua permit.

• Two components to authorize different types of tak

—Section 10(a)(1)(A) - intentional take of listed sp

scientific research or to enhance the propagatiosurvival of the species.

—Section 10(a)(1)(B) - non-federal entities (e.g., 

governments, private citizens) to unintentionally listed species as long as the take is incidental tlawful activities.
•Advance permitting system to help Atlantsturgeon researchers continue their work•12 permits expected to be issued by or ceffective date.•Permits are issued by F/PR in Headquar

Section 10(a)(1)(A) - Scientific research permits
Section 10(a)(1)(B)

• Section 10(a)(1)(B) permit - applicant must develop a cons

plan (CP) or habitat conservation plan (HCP). 

• HCPs 

• planning documents that describe the effects of the pro

potential minimization and/or mitigation measures, and the program.

• include both listed and unlisted species• currently working on HCPs for hydropower operations• discussing HCP process with ASMFC primarily re: state 

takes.

• program not delegated to the regions but specific projec
•Need to finalize a rule, under section 4(d) of the Especify prohibitions on take, as well as exemptions for the threatened Gulf of Maine DPS. •Proposed rule published June 10, 2011 (76 FR 34

•Applied all Section 9 prohibitions with limited exceptions for scientific research, salvage and resuscitation•Sought public comment 

•Expect to publish final rule in June

Final 4(d) rule
Coordination cont.

• Coordinate with Council staff, PDTs, Committees

on potential measures to include in BiOps to reduin federal fisheries (Section 7)

• MAFMC Sturgeon Committee meeting - 3/19• NEFMC Groundfish AP meeting - 3/29• NEFMC Meeting – April 24-26
Questions?
Section 7 Consultat

• Section 7 of the ESA directs NMFS to ensure th

Federal actions are not likely to jeopardize the cexistence of any listed species

• Federal action = any discretionary action that is 

authorized, funded or carried out by a Federal a

• Jeopardy = an appreciable reduction in the likeli

survival and recovery of the species in the wild

• For Atlantic sturgeon, each DPS is a unique spe

(range of all DPSs overlaps)

• Must make a jeopardy determination for each lis

species (e.g., each DPS)
What are we doing now?

We have reviewed existing Biological Opinions to 

determine which ones consider actions that may Atlantic sturgeon 

These include actions authorized, funded or carrie

NMFS, Army Corps of Engineers, EnvironmentaProtection Agency, Federal Energy Regulatory Commission, and the Nuclear Regulatory Comm
Reinitiation of Consultations

Informals

—most informal consultations are not likely to need to be 

but there could be cases where this is necessary (e.g.shortnose sturgeon but may be incidental take of Atlan

sturgeon)

—Since Atlantic sturgeon were proposed for listing, we h

provided action agencies with “technical assistance” coeffects of proposed actions on Atlantic sturgeon

Formals

—We have identified over 60 existing Biological Opinions

these, over 50 consider actions that may interact with A

sturgeon. We have identified approximately 20 “high pOpinions that we are working to get completed as soopossible. This includes 11 Fishery Management Plans
Biological Opinions

These Opinions have been or will be reinitiated so

—11 FMPs: scallop, multispecies, dogfish, monkfis

squid/mackerel/butterfish, summer flounder/scupbass, bluefish, lobster, red crab, ocean quahog, t

—NEFSC surveys (e.g., spring and fall bottom traw—NEAMAP —NEFSC Penobscot River surveys —Several Army Corps authorized dredging projects
Biological Opinions...

Additionally, we are likely to reinitiate consultation 

—Nuclear power plant operations authorized by th—Water quality issues regulated by EPA—Penobscot River dam removal project—USCG activities—Other bridge and in-water construction activities 
What does a formal consultati

Biological Opinion establishes the “status of the s

considering what is known about each spawninpopulation and DPS and the threats that are faand outside the action area – together, this infoestablishes the “baseline” 

The jeopardy analysis examines the “future” with 

without the action under consideration to deterproposed action is likely to appreciably reduce species likelihood of survival and recovery 
Effects Analysis in the Opinion w

In addition to whale and sea turtle analysis, we wil• Determine the effect of the action under conside

as it currently operates/is proposed, on each DPAtlantic sturgeon

• Establish a number of Atlantic sturgeon likely to 

captured/injured/killed per DPS

• Determine if that annual loss is likely to apprecia

reduce the likelihood of survival and recovery 
If we conclude “No Jeopardy”...

• Provide an Incidental Take Statement that exempts a 

amount of take from the ESA Section 9 prohibitions o

• Level of exempted take is the amount of take we ant

result from the proposed action operating as is

• ITS also includes Reasonable and Prudent Measure

non-discretionary and are “reasonable and appropria

minimize and monitor take 

• Terms and Conditions are required. These serve to 

implement the RPMs

• In most cases, the action taking place with RPMs in 

should result in less take than was exempted

• The “minor change rule”: RPMs can not alter the ba

design, location, scope, duration, or timing of the actmust involve only minor changes
If we conclude “Jeopardy”

• Must develop at least one Reasonable and Prudent Alternative• RPA modifies the existing operations of the action to reduce the nu

mortalities to avoid the likelihood of jeopardy

• Can have multiple RPAs that can be chosen from as long as they a

relevant conditions

• RPA can require one major change in operations or several smaller 

provided that together the small changes had enough of an impact jeopardy. 

• RPA is likely to have a “time frame” associated with it (e.g., “must m

operations to reduce bycatch by X% in X years)

• Any RPA must meet several conditions: 

— can be implemented in a manner consistent with the intended purpose — can be implemented consistent with the scope of the Federal agency's 

and jurisdiction, 

— is economically and technologically feasible; and,— removes jeopardy. 
Once an RPA is developed...

• Implementation of the RPA is mandatory 

• phased in approach to implementation possible provid

justify that any delay in implementation is not likely to j

the species 

• Analysis demonstrating that the action carried out pu

that RPA will result in mortalities at a low enough ratthe action is not likely to jeopardize any listed specieany DPS of Atlantic sturgeon)

• Incidental Take Statement provided for the modified • ITS provides a take exemption (e.g., number of Atlan

sturgeon likely to be captured/injured/killed in modifiewith non-discretionary RPMs and Terms and Conditi
Effort by gear type and mesh s

with NEFOP and ASM sturgeo

records

Sturgeon records; 2006‐2010

Effort; 2006‐2010 average















Questions?
NEFOP Observer Data Genetic

Mixed Stock Analysis

Observer Data n=89

41‐51% New York Bight

91

9% 

3‐13% Gulf of Maine 100

24‐34% South Atlantic

11‐21% Chesapeake

10

0‐6% St. John

(Canada)
NEFSC Bycatch Report

• Used 2006‐2010 data to provide an estimate o

discards of Atlantic sturgeon

• Otter Trawl and Sink Gillnet Gear

• Only presents information for Northeast Fisher

• Two methods were presented: design‐based a

model‐based estimator

• Design Based estimator: expands the ratio of to

sturgeon takes to total landings by the total lan

within a cell

• Model‐based estimator: incorporates the mixt

species associated with the observed trips. pr

more rigorous results
NEFSC bycatch report...

• NEFSC considers use of the model base

approach more appropriate

• Allocating takes to FMP is difficult base

the available information

• Model based approach is able to alloca

takes to otter trawl vs. sink gillnet
Model Based Estimates

• On average (2006‐2010) – 3,118 Atlantic sturg

captured in NER FMP fisheries each year (sink 

and otter trawl)

• Otter trawl and sink gillnet: no landings attrib

herring, river herring, salmon, tilefish, red crab clams/ocean quahog when sturgeon were take

• Mortality rate in otter trawls is approximately 

Mortality rate in sink gillnet is approximately 2(except gillnets where primary haul target is m

where mortality rate is 27%)*

*all mortality rates are based on observer catego

take as dead or alive with no adjustment for post

survival.
Bycatch Estimates

• Otter Trawl: 2006

‐2010 average 1,548 annual

encounters (range 1,338

‐1,794)

• Approximately 77 mortalities/year (5% mortali

• Sink Gillnet: 2006

‐2010 average 1,597 annual

encounters (range 858

‐2,053)

• Approximately 320 mortalities/year (20% mort

rate)

• These estimates include trips where no “FMP” 

were landed

• Approximately 13% of otter trawl estimate and

approximately 22% of sink gillnet estimate is atto non

‐FMP
What % of the Hudson River adult population is captu

NER fisheries each year?

Annual Mature Adult

Hudson River

Population Estimate

863

Observed sturgeon

are mostly subadults:

25% adult, 75%

subadult based on

lengths in Observer

database (n=726)

Average No. of Atlantic

sturgeon caught in NER

fisheries 2006 ‐ 2010:

3,118/year

Mixed Stock Analysis

(using observer data) :

46% of bycaught Atlantics

originate from NY Bight

DPS and of that, 91% are

Hudson River origin

1305 Hudson River origin

Atlantic sturgeon

captured in NER FMP

fisheries each year

327 adults

caught/year

327 captures /863

total adults

38

(% 

orig

ca

fish
Using the “Hudson Intercept Rate” to Estimate the Number of Adults in other DPS

3118 Atlantic

sturgeon

caught/year

• 8% GOM DPS

250 GOM DPS

origin fish

caught/year

• 25% adults

63 GOM DPS

origin adults

caught/year

38% intercept

rate

Use Hudson River intercept % to calculate Chesapeake Bay DPS adult po

3,118 Atlantic

sturgeon

caught/year

• 16% CB DPS

499 CB DPS origin

fish caught/year

• 25% adults

125 CB DPS origin

adults

caught/year

38% intercept rate

3

Use Hudson River intercept % to calculate South Atlantic DPS adult popul

3,118 Atlantic

sturgeon

caught/year

• 29% SA DPS

905 SA DPS

origin fish

caught/year

• 25% adults

227 SA DPS

origin adults

caught/year

38% intercept

rate

a
Use Hudson River intercept % to calculate Delaware 

population

3118 Atlantic

sturgeon

caught/year

• 46% NYB DPS

1435 NYB DPS

origin fish

caught/year

• 9% DE river

129 DE river

fish

caught/year

• 25% adult

33 Delaware

River origin

adults

caught/year

• 38% intercept rate

863 Hudson

adults

(annual

mean)

87 Delaware

adults

(annual

mean)

950 NYB

DPS adults

(annual

mean)
DPS

Mature Adult

Population

Estimate

Estimated

Number of

Subadults (at

size vulnerable

to fisheries)**

Combined

Estimate of

Adults and

Subadults at siz

vulnerable to

fisheries

GOM 166 498 664NYB (863 inHudson plusDelaware) 950 2850 3800ChesapeakeBay 329 987 1316South Atlantic 598 1794 2392

Using the “intercept rate” and the mixed stock analysis for adults 

calculate estimates of the Number of Atlantic sturgeon in NER M

waters*

*unpublished NMFS estimates determined for the purposes of conducting Section 7 con

**this number is based solely on the observed ratio of 25% adults and 75% subadults; it 

adult estimate and multiplies by 3.
Re‐initiation of Existing Consulta

• All NEFMC and MAFMC FMPs are consi

in existing ESA consultations

• Any consultation that considers an actio

may affect any DPS of Atlantic sturgeon 

be re‐initiated to consider effects to the

newly listed species

• These Opinions will update information 

analysis for whales and sea turtles as

appropriate
Existing Consultations

FMP Existing Consultation Document Expect Interact

sturgeon?

Red Crab 2002 Biological Opinion No

Surf Clam/Ocean Quahog 2002 “Not Likely to Adversely Affect”

determination

No

Tilefish 2001 Biological Opinion No

Atlantic Herring 2010 “Not Likely to Adversely Affect”

determination

No

Atlantic sea scallop 2008 Biological Opinion Occasional intera

None recorded in 

Tilefish 2001 Biological Opinion No

Multispecies 2010 Biological Opinion YesMonkfish 2010 Biological Opinion Yes

Bluefish 2010 Biological Opinion Yes

Spiny Dogfish 2010 Biological Opinion Yes

Skate 2010 Biological Opinion Yes

Squid/Mackerel/ Butterfish 2010 Biological Opinion Yes

Summer Flounder/Scup/

Black Sea Bass

2010 Biological Opinion Yes

Lobster 2010 Biological Opinion No
Information Available for

Consultations

• 2007 ASMFC Atlantic sturgeon bycatch 

– Otter trawl and sink gillnet are gears of co

• 2011 NEFSC Atlantic sturgeon bycatch r

– Otter trawl and sink gillnet are gears of co

• NEFOP and ASM Observer Database (72

recorded Atlantic sturgeon interactions 

2006)
Section 7 Consultation

• Section 7 of the ESA directs NMFS to ensure th

Federal actions are not likely to jeopardize the

continued existence of any listed species

• Federal action = a discretionary action that is

authorized, funded or carried out by a Federal 

• We have typically considered each FMP to be a

independent Federal action and have conducte

consultations on an FMP by FMP basis

• We are currently exploring alternatives to this 

such as batching together FMPs with like gear t

otherwise similar operations. This effort is bei

by the difficulty of “assigning” or “allocating” tFMP.
Possible Measures to consider 

reduce interactions or mortalit

• Limiting Soak Time or Requiring Net Tending• Reduced mesh size

• Increased twine size• Effort controls

• Incentive Areas

– Closed to gillnets but open to trawls

• Resuscitation of sturgeon

• Seasonal Area Closures

– Known sturgeon aggregation areas

• Gear Modification

– Monkfish BREP study
NERO Sturgeon Task Force

Goal – to provide a mechanism for full and open 

communication on sturgeon related issues withregion

Members – representatives from all NERO divisio

GCNE, OLE, HRC

Coordinated by PRD