[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Proposed Rules]
[Pages 61904-61929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24461]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

RIN 0648-XN50
[Docket No. 090219208-9210-01]


Endangered and Threatened Wildlife and Plants; Proposed Listings 
for Two Distinct Population Segments of Atlantic Sturgeon (Acipenser 
oxyrinchus oxyrinchus) in the Southeast

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: In 2007, a Status Review Team (SRT) consisting of Federal 
biologists from NMFS, U.S. Geological Survey (USGS), and U.S. Fish and 
Wildlife Service (USFWS) completed a status review report on Atlantic 
sturgeon (Acipenser oxyrinchus oxyrinchus) in the United States. We, 
NMFS, have reviewed this status review report and all other best 
available information to determine if listing Atlantic sturgeon under 
the Endangered Species Act (ESA) as either threatened or endangered is 
warranted. The SRT recommended that Atlantic sturgeon in the United 
States be divided into the following five distinct population segments 
(DPSs): Gulf of Maine; New York Bight; Chesapeake Bay; Carolina; and 
South Atlantic, and we agree with this DPS structure. After reviewing 
the available information on the Carolina and South Atlantic DPSs, the 
two DPSs located within the NMFS Southeast Region, we have determined 
that listing these two DPSs as endangered is warranted. Therefore, we 
propose to list these two DPSs as endangered under the ESA. We have 
published a separate listing determination for the DPSs within the NMFS 
Northeast Region in today's Federal Register.

DATES: Comments on this proposed rule must be received by January 4, 
2011. At least one public hearing will be held in a central location 
for each DPS; notice of the location(s) and time(s) of the hearing(s) 
will be subsequently published in the Federal Register not less than 15 
days before the hearing is held.

ADDRESSES: You may submit comments, identified by the XRIN 0648-XN50, 
by any of the following methods:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http//www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail or hand-delivery: Assistant Regional Administrator 
for Protected Resources, NMFS, Southeast Regional Office, 263 13th 
Avenue South, St. Petersburg, FL 33701.
    <bullet> Facsimile (fax) to: 727-824-5309.
    Instructions: All comments received are considered part of the 
public record and will generally be posted to http://www.regulations.gov. All Personal Identifying Information (i.e., name, 
address, etc.) voluntarily submitted may be publicly accessible. Do not 
submit Confidential Business Information or otherwise sensitive or 
protected information. We will accept anonymous comments (enter ``n/a'' 
in the required fields if you wish to remain anonymous). Please provide 
electronic attachments using Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only. This proposed rule, the list of 
references, and the status review report are also available 
electronically at the NMFS Web site at http://sero.nmfs.noaa.gov/pr/sturgeon.htm.

FOR FURTHER INFORMATION CONTACT: Kelly Shotts, NMFS, Southeast Regional 
Office (727) 824-5312 or Marta Nammack, NMFS, Office of Protected 
Resources (301) 713-1401.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate as possible and informed by the best available 
scientific and commercial information. Therefore, we request comments 
or information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The abundance of Atlantic sturgeon in the various river systems 
in the Carolina and South Atlantic DPSs;
    (2) The mixing of fish from different DPSs in parts of their 
ranges, particularly in the marine environment;
    (3) Information concerning the viability of and/or threats to 
Atlantic sturgeon in the Carolina and South Atlantic DPSs; and
    (4) Efforts being made to protect Atlantic sturgeon in the Carolina 
and South Atlantic DPSs.

Public Hearings

    One public hearing will be held in a central location for each DPS. 
We will schedule the public hearings on this proposal and announce the 
dates, times, and locations of those hearings, as well as how to obtain 
reasonable accommodations for disabilities, in the Federal Register and 
local newspapers at least 15 days before the first hearing.

Background

Initiation of the Status Review

    We first identified Atlantic sturgeon as a candidate species in 
1991. On June 2, 1997, NMFS and USFWS (collectively, the Services) 
received a petition from the Biodiversity Legal Foundation requesting 
that we list Atlantic sturgeon in the United States, where it continues 
to exist, as threatened or endangered and designate critical habitat 
within a reasonable period of time following the listing. A notice was 
published in the Federal Register on October 17, 1997, stating that the 
Services had determined substantial information existed indicating the 
petitioned action may be warranted (62 FR 54018). In 1998, after 
completing a comprehensive status review, the Services published a 12-
month determination in the Federal Register announcing that listing was 
not warranted at that time (63 FR 50187; September 21, 1998). We 
retained Atlantic sturgeon on the candidate species list (and 
subsequently transferred it to the Species of Concern List (69 FR 
19975; April 15, 2004)). Concurrently, the Atlantic States Marine 
Fisheries Commission (ASMFC) completed Amendment 1 to the 1990 Atlantic 
Sturgeon Fishery Management Plan (FMP) that imposed a 20- to 40-year 
moratorium on all Atlantic sturgeon fisheries until the Atlantic Coast 
spawning stocks could be restored to a level where 20 subsequent year 
classes of adult females were protected (ASMFC, 1998). In 1999, 
pursuant to section 804(b) of the Atlantic Coastal Fisheries 
Cooperative Management Act (ACFCMA) (16 U.S.C. 5101 et seq.), we 
followed this action by closing the Exclusive Economic Zone (EEZ) to 
Atlantic sturgeon retention. In 2003, we sponsored a workshop in 
Raleigh, North Carolina, with USFWS and ASMFC entitled, ``The Status 
and Management of Atlantic Sturgeon,'' to discuss the status of 
sturgeon along the Atlantic Coast and determine what obstacles, if any, 
were impeding their recovery (Kahnle et al., 2005). The workshop 
revealed mixed results in regards to the status of Atlantic sturgeon 
populations, despite the coastwide fishing

[[Page 61905]]

moratorium. Some populations seemed to be recovering while others were 
declining. Bycatch and habitat degradation were noted as possible 
causes for continued population declines.
    Based on the information gathered from the 2003 workshop on 
Atlantic sturgeon, we decided that a new review of Atlantic sturgeon 
status was needed to determine if listing as threatened or endangered 
under the ESA was warranted. The SRT, consisting of four NMFS, four 
USFWS, and three USGS biologists prepared a draft status review report. 
The draft report was then reviewed and supplemented by eight state and 
regional experts who provided their individual expert opinions on the 
scientific facts contained in the report and provided additional 
information to ensure the report provided the best available data. 
Lastly, the report was peer reviewed by six experts from academia. A 
Notice of Availability of the final status review report was published 
in the Federal Register on April 3, 2007 (72 FR 15865). On October 6, 
2009, we received a petition from the Natural Resources Defense Council 
to list Atlantic sturgeon as endangered under the ESA. As an 
alternative, the petitioner requested that the species be delineated 
and listed as the five DPSs described in the 2007 Atlantic sturgeon 
status review report (ASSRT, 2007): Gulf of Maine, New York Bight, 
Chesapeake Bay, Carolina, and South Atlantic DPSs, with the Gulf of 
Maine and South Atlantic DPSs listed as threatened, and the remaining 
three DPSs listed as endangered. The petitioner also requested that 
critical habitat be designated for Atlantic sturgeon under the ESA. We 
published a Notice of 90-Day Finding on January 6, 2010 (75 FR 838), 
stating that the petition presented substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted.

Listing Species Under the Endangered Species Act

    We are responsible for determining whether Atlantic sturgeon are 
threatened or endangered under the ESA (16 U.S.C. 1531 et seq.) To be 
considered for listing under the ESA, a group of organisms must 
constitute a ``species,'' which is defined in section 3 of the ESA to 
include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' On February 7, 1996, the 
Services adopted a policy describing what constitutes a DPS of a 
taxonomic species (61 FR 4722). The joint DPS policy identified two 
elements that must be considered when identifying a DPS: (1) The 
discreteness of the population segment in relation to the remainder of 
the species (or subspecies) to which it belongs; and (2) the 
significance of the population segment to the remainder of the species 
(or subspecies) to which it belongs. As stated in the joint DPS policy, 
Congress expressed its expectation that the Services would exercise 
authority with regard to DPSs sparingly and only when the biological 
evidence indicates such action is warranted.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The statute 
requires us to determine whether any species is endangered or 
threatened as a result of any one or a combination of the following 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence (section 4(a)(1)(A)(E)). Section 4(b)(1)(A) of the 
ESA requires us to make listing determinations based solely on the best 
scientific and commercial data available after conducting a review of 
the status of the species and after taking into account efforts being 
made to protect the species. Accordingly, we have followed a stepwise 
approach in making our listing determination for Atlantic sturgeon. 
Considering biological evidence, such as the separation between river 
populations during spawning and the possibility of multiple distinct 
interbreeding Atlantic sturgeon populations, we evaluated whether 
Atlantic sturgeon population segments met the DPS Policy criteria. We 
then determined the status of each DPS (each ``species'') and 
identified the factors and threats contributing to their status per 
section 4(a)(1) of the ESA. Finally, we assessed efforts being made to 
protect the species, determining if these efforts are adequate to 
mitigate impacts and threats to the species' status. We evaluated 
ongoing conservation efforts using the criteria outlined in the Policy 
for Evaluating Conservation Efforts (PECE; 68 FR 15100; March 28, 2003) 
to determine their certainties of implementation and effectiveness.
    We reviewed the status review report, its cited references and peer 
review comments, and information that has become available since the 
status review report was finalized in 2007. Thus, we believe this 
proposed rule is based on the best available scientific and commercial 
information. Much of the information discussed below on Atlantic 
sturgeon biology, distribution, historical abundance and threats is 
attributable to the status review report. However, we have 
independently applied the statutory provisions of the ESA, our 
regulations regarding listing determinations, and our policy on 
identification of distinct population segments, in making the proposed 
listing determinations.

Taxonomy and Life History

    There are two subspecies of Atlantic sturgeon--the Gulf sturgeon 
(Acipenser oxyrinchus desotoi) and the Atlantic sturgeon (Acipenser 
oxyrinchus oxyrinchus). Historically, the Gulf sturgeon occurred from 
the Mississippi River east to Tampa Bay. Its present range extends from 
Lake Pontchartrain and the Pearl River system in Louisiana and 
Mississippi east to the Suwannee River in Florida. The Gulf sturgeon 
was listed as threatened under the ESA in 1991. The finding in this 
proposed rule addresses the subspecies Acipenser oxyrinchus oxyrinchus 
(referred to as Atlantic sturgeon), which is distributed along the 
eastern coast of North America. Historically, sightings have been 
reported from Hamilton Inlet, Labrador, south to the St. Johns River, 
Florida. Occurrences south of the St. Johns River, Florida, and in 
Labrador may have always been rare.
    Atlantic sturgeon is a long-lived, late-maturing, estuarine-
dependent, anadromous species. Atlantic sturgeon may live up to 60 
years, reach lengths up to 14 feet (ft; 4.27 meters (m)), and weigh 
over 800 pounds (lbs; 363 kilograms (kg)). They are distinguished by 
armor-like plates and a long protruding snout that is ventrally 
located, with four barbels crossing in front. Sturgeon are omnivorous 
benthic (bottom) feeders and filter quantities of mud along with their 
food. Adult sturgeon diets include mollusks, gastropods, amphipods, 
isopods, and fish. Juvenile sturgeon feed on aquatic insects and other 
invertebrates (ASSRT, 2007).
    Vital parameters of Atlantic sturgeon populations show clinal 
variation with faster growth and earlier age at maturation in more 
southern systems, though not all data sets conform to this

[[Page 61906]]

trend. Atlantic sturgeon mature between the ages of 5 and 19 years in 
South Carolina (Smith et al., 1982), between 11 and 21 years in the 
Hudson River (Young et al., 1988), and between 22 and 34 years in the 
St. Lawrence River (Scott and Crossman, 1973). Atlantic sturgeon likely 
do not spawn every year. Multiple studies have shown that spawning 
intervals range from 1 to 5 years for males (Smith, 1985; Collins et 
al., 2000; Caron et al., 2002) and 2 to 5 years for females (Vladykov 
and Greeley, 1963; Van Eenennaam et al., 1996; Stevenson and Secor, 
1999). Fecundity of Atlantic sturgeon has been correlated with age and 
body size, with egg production ranging from 400,000 to 8 million eggs 
per year (Smith et al., 1982; Van Eenennaam and Doroshov, 1998; 
Dadswell, 2006). The average age at which 50 percent of maximum 
lifetime egg production is achieved is estimated to be 29 years, 
approximately 3 to 10 times longer than for other bony fish species 
examined (Boreman, 1997).
    Spawning adults migrate upriver in the spring, which occurs during 
February and March in southern systems, April and May in mid-Atlantic 
systems, and May and July in Canadian systems (Murawski and Pacheco, 
1977; Smith, 1985; Bain, 1997; Smith and Clugston, 1997; Caron et al., 
2002). In some southern rivers, a fall spawning migration may also 
occur (Rogers and Weber, 1995; Weber and Jennings, 1996; Moser et al., 
1998). Spawning is believed to occur in flowing water between the salt 
front and fall line of large rivers, where optimal flows are 18 to 30 
inches (in) per second (46 to 76 centimeters (cm) per second) and 
depths are 36 to 89 ft (11 to 27 m) (Borodin, 1925; Leland, 1968; Scott 
and Crossman, 1973; Crance, 1987; Bain et al., 2000). The fall line is 
the boundary between an upland region of continental bedrock and an 
alluvial coastal plain, sometimes characterized by waterfalls or 
rapids. Sturgeon eggs are highly adhesive and are deposited on the 
bottom substrate, usually on hard surfaces (e.g., cobble) (Gilbert, 
1989; Smith and Clugston, 1997). Hatching occurs approximately 94 to 
140 hours after egg deposition at corresponding temperatures of 68.0 to 
64.4 degrees Fahrenheit (20 to 18 degrees Celsius). The newly emerged 
larvae assume a demersal existence (Smith et al., 1980). The yolksac 
larval stage is completed in about 8 to 12 days, during which time the 
larvae move downstream to rearing grounds (Kynard and Horgan, 2002). 
During the first half of their migration downstream, movement is 
limited to night. During the day, larvae use benthic structure (e.g., 
gravel matrix) as refugia (Kynard and Horgan, 2002). During the latter 
half of migration, when larvae are more fully developed, movement to 
rearing grounds occurs both day and night. Juvenile sturgeon continue 
to move further downstream into brackish waters and eventually become 
residents in estuarine waters for months to years.
    Recovery of depleted populations is an inherently slow process for 
a late-maturing species such as Atlantic sturgeon. Their late age at 
maturity provides more opportunities for individuals to be removed from 
the population before reproducing. However, a long life-span also 
allows multiple opportunities to contribute to future generations 
provided the appropriate spawning habitat and conditions are available.

Distribution and Abundance

    Historically, Atlantic sturgeon were present in approximately 38 
rivers throughout their range, of which 35 rivers have been confirmed 
to have had a historical spawning population. More recently, presence 
has been documented in 36 rivers with spawning taking place in at least 
18 rivers. Spawning has been confirmed in the St. Lawrence, Annapolis, 
St. John, Kennebec, Hudson, Delaware, James, Roanoke, Tar-Pamlico, Cape 
Fear, Waccamaw, Great Pee Dee, Combahee, Edisto, Savannah, Ogeechee, 
Altamaha, and Satilla rivers. Rivers with possible, but unconfirmed, 
spawning populations include the St. Croix, Penobscot, Androscoggin, 
Sheepscot, York, Neuse, Santee and Cooper Rivers; spawning may occur in 
the Santee and/or the Cooper Rivers, but it may not result in 
successful recruitment.
    Historical records from the 1700s and 1800s document large numbers 
of sturgeon in many rivers along the Atlantic Coast. Atlantic sturgeon 
underwent significant range-wide declines from historical abundance 
levels due to overfishing in the late 1800s, as discussed more fully 
below. Sturgeon stocks were further impacted through environmental 
degradation, especially due to habitat loss and reduced water quality 
from the construction of dams in the early to mid-1900s. The species 
persisted in many rivers, though at greatly reduced levels (1 to 5 
percent of their earliest recorded numbers), and commercial fisheries 
were active in many rivers during all or some of the years 1962 to 
1997. Many of these contemporary fisheries resulted in continued 
overfishing, which prompted ASMFC to impose the Atlantic sturgeon 
fishing moratorium in 1998 and NMFS to close the EEZ to Atlantic 
sturgeon retention in 1999.
    Abundance estimates of Atlantic sturgeon are currently only 
available for the Hudson (NY) and Altamaha (GA) rivers, where adult 
spawning populations are estimated to be approximately 870 and 343 fish 
per year, respectively (Kahnle et al., 2007; Schueller and Peterson, 
2006). Surveys from other rivers in the species' U.S. range are more 
qualitative, primarily focusing on documentation of multiple year 
classes and reproduction, as well as the presence of very large adults 
and gravid females, in the river systems. In the Southeast Region, 
spawning has been confirmed in 11 rivers (Roanoke, Tar-Pamlico, Cape 
Fear, Waccamaw, Great Pee Dee, Combahee, Edisto, Savannah, Ogeechee, 
Altamaha, and Satilla rivers), with possible spawning occurring in 3 
additional river (the Neuse, Santee and Cooper Rivers). Based on a 
comprehensive review of the available data, the literature, and 
information provided by local, state, and Federal fishery management 
personnel, the Altamaha River is believed to have the largest 
population in the Southeast (ASSRT, 2007). The larger size of this 
population relative to the other river populations in the Southeast is 
likely due to the absence of dams, the lack of heavy development in the 
watershed, and relatively good water quality, as Atlantic sturgeon 
populations in the other rivers in the Southeast have been affected by 
one or more of these factors. Trammel net surveys, as well as 
independent monitoring of incidental take in the American shad fishery, 
suggest that the Altamaha population is neither increasing nor 
decreasing. Though abundance estimates are not available for the other 
river populations, because the Altamaha spawning population is the 
largest, we believe a conservative estimate of the other spawning 
populations in the Southeast Region is no more than 300 adults spawning 
per year.
    Historically, Atlantic sturgeon were abundant in most North 
Carolina coastal rivers and estuaries, with the largest fisheries 
occurring in the Roanoke River/Albemarle Sound system and in the Cape 
Fear River (Kahnle et al., 1998). Historical landings records from the 
late 1800s indicated that Atlantic sturgeon were very abundant within 
Albemarle Sound (approximately 135,600 lbs or 61,500 kg landed per 
year). Abundance estimates derived from these historical landings 
records indicated that between 7,200 and 10,500 adult females were 
present within North Carolina prior to 1890 (Armstrong and

[[Page 61907]]

Hightower, 2002; Secor, 2002). The North Carolina Division of Marine 
Fisheries (NCDMF) has conducted the Albemarle Sound Independent Gill 
Net Survey (IGNS), initially designed to target striped bass, since 
1990. During that time, 842 young-of-the-year (YOY) and subadult 
sturgeon have been captured. Incidental take of Atlantic sturgeon in 
the IGNS, as well as multiple observations of YOY from the Albemarle 
Sound and Roanoke River, provide evidence that spawning continues, and 
catch records indicate that this population seemed to be increasing 
until 2000, when recruitment began to decline. Catch records and 
observations from other river systems in North Carolina exist (e.g., 
Hoff, 1980, Oakley, 2003, in the Tar and Neuse rivers; Moser et al., 
1998, and Williams and Lankford, 2003, in the Cape Fear River) and 
provide evidence for spawning, but based on the relatively low numbers 
of fish caught, it is difficult to determine whether the populations in 
those systems are declining, rebounding, or remaining static. Also, 
large survey captures during a single year are difficult to interpret. 
For instance, abundance of Atlantic sturgeon below Lock and Dam 
<greek-i>1 in the Cape Fear River seemed to have increased dramatically 
during the 1990-1997 surveys (Moser et al., 1998) as the catch per unit 
effort (CPUE) of Atlantic sturgeon was up to eight times greater during 
1997 than in the earlier survey years. Since 1997, Atlantic sturgeon 
CPUE doubled between the years of 1997 and 2003 (Williams and Lankford, 
2003). However, it is unknown whether this is an actual population 
increase reflecting the effects of North Carolina's ban on Atlantic 
sturgeon fishing that began in 1991, or whether the results were skewed 
by one outlier year. There was a large increase observed in 2002, 
though the estimates were similar among all other years of the 1997 to 
2003 study.
    Atlantic sturgeon were likely present in many South Carolina river/
estuary systems historically, but it is not known where spawning 
occurred. Secor (2002) estimated that 8,000 spawning females were 
likely present prior to 1890, based on U.S. Fish Commission landing 
records. Since the 1800s, however, populations have declined 
dramatically (Collins and Smith, 1997). Recorded landings of Atlantic 
sturgeon in South Carolina peaked at 481,050 lbs (218,200 kg) in 1897, 
but 5 years later, only 93,920 lbs (42,600 kg) were reported landed 
(Smith et al., 1984). Landings remained depressed throughout the 1900s, 
with between 4,410 and 99,210 lbs (2,000 and 45,000 kg) of Atlantic 
sturgeon reported annually between 1958 and 1982 (Smith et al., 1984). 
During the last two decades, Atlantic sturgeon have been observed in 
most South Carolina coastal rivers, although it is not known if all 
rivers support a spawning population (Collins and Smith, 1997). Recent 
sampling for shortnose sturgeon (Acipenser brevirostrum) conducted in 
Winyah Bay captured two subadult Atlantic sturgeon in 2004. Captures of 
age-1 juveniles from the Waccamaw River during the early 1980s suggest 
that a reproducing population of Atlantic sturgeon may persist in that 
river, although the fish could have been from the nearby Great Pee Dee 
River (Collins and Smith, 1997). Until recently, there was no evidence 
that Atlantic sturgeon spawned in the Great Pee Dee River, although 
subadults were frequently captured and large adults were often observed 
by fishers. However, a fishery survey conducted by Progress Energy 
Carolinas Incorporated captured a running ripe male in October 2003 and 
observed other large sturgeon, perhaps revealing a fall spawning run 
(ASSRT, 2007). There are no data available regarding the presence of 
YOY or spawning adult Atlantic sturgeon in the Sampit River, although 
it did historically support a population and is thought to serve as a 
nursery ground for local stocks (ASMFC, 2009).
    The Santee-Cooper system had some of the highest historical 
landings of Atlantic sturgeon in the Southeast. Data from the U.S. Fish 
Commission shows that greater than 220,460 lbs (100,000 kg) of Atlantic 
sturgeon were landed in 1890 (Secor, 2002). The capture of 151 
subadults, including age-1 juveniles, in the Santee River in 1997 
suggests that an Atlantic sturgeon population still exists in this 
river (Collins and Smith, 1997). The status review report documents 
that three adult Atlantic sturgeon carcasses were found above the 
Wilson and Pinopolis dams in Lake Moultrie (a Santee-Cooper reservoir) 
during the 1990s, and also states that there is little information 
regarding a land-locked population existing above the dams. There is no 
effective fish passage for sturgeon on the Santee and Cooper Rivers, 
and the lowest dams on these rivers are well below the fall line, thus 
limiting the amount of freshwater spawning and developmental habitat 
for fish below the dams. In 2007, an Atlantic sturgeon entered the lock 
at the St. Stephens dam; it was physically removed and translocated 
downstream into the Santee River (A. Crosby, SCDNR, pers. comm.) In 
2004, 15 subadult Atlantic sturgeon were captured in shortnose sturgeon 
surveys in the Santee River estuary. The previous winter, four juvenile 
(YOY and subadults) Atlantic sturgeon were captured from the Santee 
(one fish) and Cooper (three fish) rivers. These data support previous 
hypotheses that a fall spawning run occurs within this system, similar 
to that observed in other southern river systems. However, the status 
review report notes that SCDNR biologists have some doubt whether 
smaller sturgeon from the Santee-Cooper are resident YOY, as flood 
waters from the Pee-Dee or Waccamaw Rivers could have transported these 
YOY to the Santee-Cooper system via Winyah Bay and the Intracoastal 
Waterway (McCord, 2004). Resident YOY could, however, be evidence of a 
spawning population above the dams, as is the case with shortnose 
sturgeon (S. Bolden, pers. comm.).
    From 1994 to 2001, over 3,000 juveniles have been collected in the 
Ashepoo-Combahee-Edisto Rivers (ACE) Basin, including 1,331 YOY 
sturgeon (Collins and Smith, 1997; ASSRT, 2007). Sampling for adults 
began in 1997, with two adult sturgeon captured in the first year of 
the survey, including one gravid female captured in the Edisto River 
and one running ripe male captured in the Combahee River. The running 
ripe male in the Combahee River was recaptured one week later in the 
Edisto River, which suggests that the three rivers that make up the ACE 
Basin may support a single population that spawns in at least two of 
the rivers. In 1998, an additional 39 spawning adults were captured 
(ASSRT, 2007). These captures show that a current spawning population 
exists in the ACE Basin, as both YOY and spawning adults are regularly 
captured.
    The Ashley River, along with the Cooper River, drains into 
Charleston Bay; only shortnose sturgeon have been sampled in these 
rivers. While the Ashley River historically supported an Atlantic 
sturgeon spawning population, it is unknown whether the population 
still exists. There has been little or no scientific sampling for 
Atlantic sturgeon in the Broad/Coosawatchie River. One fish of unknown 
size was reported from a small directed fishery during 1981 to 1982 
(Smith and Dingley, 1984).
    Prior to the collapse of the fishery in the late 1800s, the 
sturgeon fishery was the third largest fishery in Georgia. Secor (2002) 
estimated from U.S. Fish Commission landing reports that approximately 
11,000 spawning females were likely present prior to 1890. The sturgeon 
fishery was mainly centered on the Altamaha River, and in more recent 
years, peak landings were recorded in

[[Page 61908]]

1982 (13,000 lbs, 5,900 kg). Based on juvenile presence and abundance, 
the Altamaha River currently supports one of the healthier Atlantic 
sturgeon populations in the southeast (ASSRT, 2007). Atlantic sturgeon 
are also present in the Ogeechee River; however, the absence of age-1 
fish during some years and the unbalanced age structure suggests that 
the population is highly stressed (Rogers and Weber, 1995). Sampling 
results indicate that the Atlantic sturgeon population in the Satilla 
River is also highly stressed (Rogers and Weber, 1995). Only four 
spawning adults or YOY, which were used for genetic analysis (Ong et 
al., 1996), have been collected from this river since 1995. In Georgia, 
Atlantic sturgeon are believed to spawn in the Savannah, Ogeechee, 
Altamaha, and Satilla rivers. The Savannah River supports a reproducing 
population of Atlantic sturgeon (Collins and Smith, 1997). According to 
NOAA's National Ocean Service, 70 Atlantic sturgeon have been captured 
since 1999 (ASSRT, 2007). Twenty-two of these fish have been YOY. A 
running ripe male was captured at the base of the dam at Augusta during 
the late summer of 1997, which supports the hypothesis that spawning 
occurs there in the fall.
    Reproducing Atlantic sturgeon populations are no longer believed to 
exist south of the Satilla River in Georgia. Recent sampling of the St. 
Marys River failed to locate any sturgeon, which suggests that the 
spawning population may be extirpated (Rogers et al., 1994; NMFS 2009). 
In January 2010, 12 sturgeon, believed to be Atlantics, were captured 
at the mouth of the St. Marys during relocation trawling associated 
with a dredging project (J. Wilcox, Florida Fish and Wildlife 
Conservation Commission, Pers. Comm.), the first capture of Atlantics 
in the St. Marys in decades. However, because they were not YOY or 
adults captured upstream, these trawl-captured sturgeon do not provide 
new evidence of a spawning population in the St. Marys. There have been 
reports of Atlantic sturgeon tagged in the Edisto River (South 
Carolina) being recaptured in the St. Johns River, indicating this 
river may serve as a nursery ground; however, there are no data to 
support the existence of a current spawning population (i.e., YOY or 
running ripe adults) in the St. Johns (Rogers and Weber, 1995; Kahnle 
et al., 1998).

Identification of Distinct Population Segments

    The ESA's definition of ``species'' includes ``any subspecies of 
fish or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when mature.'' 
The high degree of reproductive isolation of Atlantic sturgeon (i.e., 
homing to their natal rivers for spawning) (ASSRT, 2007; Wirgin et al., 
2000; King et al., 2001; Waldman et al., 2002), as well as the 
ecological uniqueness of those riverine spawning habitats, the genetic 
diversity amongst subpopulations, and the differences in life history 
characteristics, provide evidence that discrete reproducing populations 
of Atlantic sturgeon exist, which led the Services to evaluate 
application of the DPS policy in its 2007 status review. To determine 
whether any populations qualify as DPSs, we evaluated populations 
pursuant to the joint DPS policy, and considered: (1) The discreteness 
of any Atlantic sturgeon population segment in relation to the 
remainder of the subspecies to which it belongs; and (2) the 
significance of any Atlantic sturgeon population segment to the 
remainder of the subspecies to which it belongs.

Discreteness

    The joint DPS policy states that a population of a vertebrate 
species may be considered discrete if it satisfies either one of the 
following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation) or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of Section 4(a)(1)(D) of the ESA.
    Atlantic sturgeon throughout their range exhibit ecological 
separation during spawning that has resulted in multiple genetically 
distinct interbreeding population segments. Tagging studies and genetic 
analyses provide the evidence of this ecological separation (Wirgin et 
al., 2000; King et al., 2001; Waldman et al., 2002; ASSRT, 2007; 
Grunwald et al., 2008). As previously discussed, though adult and 
subadult Atlantic sturgeon originating from different rivers mix in the 
marine environment (Stein et al., 2004a), the vast majority of Atlantic 
sturgeon return to their natal rivers to spawn, with some studies 
showing one or two individuals per generation spawning outside their 
natal river system (Wirgin et al., 2000; King et al., 2001; Waldman et 
al., 2002). In addition, spawning in the various river systems occurs 
at different times, with spawning occurring earliest in southern 
systems and occurring as much as 5 months later in the northernmost 
river systems (Murawski and Pacheco, 1977; Smith, 1985; Rogers and 
Weber, 1995; Weber and Jennings, 1996; Bain, 1997; Smith and Clugston, 
1997; Moser et al., 1998; Caron et al., 2002). Therefore, the 
ecological separation of the interbreeding units of Atlantic sturgeon 
results primarily from spatial separation (i.e., very few fish spawning 
outside their natal river systems), as well as temporal separation 
(spawning populations becoming active at different times along a 
continuum from north to south).
    Genetic analyses of mitochondrial DNA (mtDNA), which is maternally 
inherited, and nuclear DNA (nDNA), which reflects the genetics of both 
parents, provides evidence of the separation amongst Atlantic sturgeon 
populations in different rivers (Bowen and Avise, 1990; Ong et al., 
1996; Waldman et al., 1996a; Waldman et al., 1996b; Waldman and Wirgin, 
1998; Waldman et al., 2002; King et al., 2001; Wirgin et al., 2002; 
Wirgin et al., 2005; Wirgin and King, 2006; Grunwald et al., 2008). 
Overall, these studies consistently found Atlantic sturgeon to be 
genetically diverse, and offered that between seven and ten Atlantic 
sturgeon population groupings can be statistically differentiated 
range-wide (King et al., 2001; Waldman et al., 2002; Wirgin et al., 
2002; Wirgin et al., 2005; ASSRT, 2007 (Tables 4 and 5); Grunwald et 
al., 2008).
    Given a number of key differences amongst the studies (e.g., the 
analytical and/or statistical methods used, the number of rivers 
sampled, and whether samples from subadults were included), it is not 
unexpected that each reached a different conclusion as to the number of 
Atlantic sturgeon population groupings. Wirgin and King (2006) refined 
the genetic analyses for Atlantic sturgeon to address such differences 
in prior studies. Most notably, they increased sample sizes from 
multiple rivers and limited the samples analyzed to those collected 
from YOY and mature adults (greater than 130 cm total length) to ensure 
that the fish originated from the river in which it was sampled. The 
results of the refined analysis by Wirgin and King (2006) are presented 
in the status review report (ASSRT, 2007; e.g., Table 6 and Figure 17); 
both the mtDNA haplotype and nDNA allelic frequencies analyzed by 
Wirgin and King (2006) indicated that Atlantic sturgeon river 
populations are genetically differentiated. The results of the mtDNA 
analysis used for the status review

[[Page 61909]]

report were also subsequently published by Grunwald et al. (2008). In 
comparison to the mtDNA analyses of the status review report, Grunwald 
et al. (2008) used additional samples, some from fish in the size range 
(less than 130 cm) excluded by Wirgin and King because they were 
smaller than those considered to be mature adults. Nevertheless, the 
results were qualitatively the same and demonstrated that each of the 
12 sampled Atlantic sturgeon populations could be genetically 
differentiated (Grunwald et al., 2008).
    Genetic distances and statistical analyses (bootstrap values and 
assignment test values) were used to investigate significant 
relationships among, and differences between, Atlantic sturgeon river 
populations (ASSRT, 2007; Table 6 and Figures 16-18). Overall, the 
genetic markers used in this analysis resulted in an average accuracy 
of only 88 percent for determining a sturgeon's natal river origin, but 
an average accuracy of 94 percent for correctly classifying it to one 
of five groups of populations (Kennebec River, Hudson River, James 
River, Albemarle Sound, and Savannah/Ogeechee/Altamaha Rivers) when 
using microsatellite data collected only from YOY and adults (ASSRT, 
2007; Table 6). A phylogenetic tree (a neighbor joining tree) was 
produced from only YOY and adult samples (to reduce the likelihood of 
including strays from other populations) using the microsatellite 
analysis (ASSRT, 2007; Figure 17). Bootstrap values (which measure how 
consistently the data support the tree structure) for this tree were 
high (equal to or greater than 87 percent, and all but one over 90 
percent) (ASSRT, 2007). Regarding sturgeon from southeast rivers, this 
analysis resulted in a range of 60 to 92 percent accuracy in 
determining a sturgeon's natal river origin, but 92 and 96 percent 
accuracy in correctly classifying a sturgeon from four sampled river 
populations (the Albemarle Sound, Savannah, Ogeechee, and Altamaha 
River populations) to two groupings of river populations (Albemarle 
Sound and Savannah/Ogeechee/Altamaha Rivers). These two groupings 
exhibited clear separation from northern populations and from each 
other.
    Genetic samples for YOY and spawning adults were not available for 
river populations originating between the Albemarle Sound and the other 
three rivers. However, nDNA from an expanded dataset that included 
juvenile Atlantic sturgeon was used to produce a neighbor-joining tree 
with bootstrap values (ASSRT, 2007; Figure 18). This dataset included 
additional samples from the Santee-Cooper, Waccamaw, and Edisto 
populations in the Southeast. Atlantic sturgeon river populations also 
grouped into five population segments in this analysis. Atlantic 
sturgeon from the Santee-Cooper system grouped with the Albemarle Sound 
population, while the other two river populations grouped with the 
Savannah/Ogeechee/Altamaha River population segment. With the exception 
of the Waccamaw River population, all river populations sampled within 
each population segment along the entire East Coast were geographically 
adjacent. The Waccamaw River population grouped with the Edisto/
Savannah/Ogeechee/Altamaha River population segment, even though it is 
geographically located between Albemarle Sound and the Santee and 
Cooper Rivers. However, we attributed this to the small sample size (21 
fish) from the Waccamaw River. From the seven Southeast river 
populations included in the analysis, we determined that river 
populations from the ACE Basin southward grouped together and that 
river populations between the Santee-Cooper system and Albemarle Sound 
(Roanoke River) grouped together.
    The higher accuracy in identifying Atlantic sturgeon to one of two 
population groupings (Albemarle Sound/Santee-Cooper Rivers and 
Ogeechee/Savannah/Altamaha/Edisto Rivers) compared to their natal 
rivers supports the fact that these multiple-river population segments 
are discrete from each other.
    We have considered the information on Atlantic sturgeon population 
structuring provided in the status review report and Grunwald et al. 
(2008). The nDNA analyses described in the status review report provide 
additional genetics information, and include chord distances and 
bootstrap values to support the findings for population structuring of 
Atlantic sturgeon within the United States. Therefore, based on genetic 
differences observed between certain river populations and the 
assumption that adjacent river populations are more likely to breed 
with one another than river populations from rivers that are not 
adjacent to each other, five discrete Atlantic sturgeon population 
segments in the United States meet the DPS Policy's Discreteness 
criterion, with two located in the Southeast: (1) The ``Carolina'' 
population segment, which includes Atlantic sturgeon originating from 
the Roanoke, Tar/Pamlico, Cape Fear, Waccamaw, Pee Dee, and Santee-
Cooper Rivers, and (2) the ``South Atlantic'' population segment, which 
includes Atlantic sturgeon originating from the ACE Basin (Ashepoo, 
Combahee, and Edisto rivers), Savannah, Ogeechee, Altamaha, and Satilla 
Rivers.

Significance

    When the discreteness criterion is met for a potential DPS, as it 
is for the Carolina and South Atlantic population segments in the 
Southeast identified above, the second element that must be considered 
under the DPS policy is significance of each DPS to the taxon as a 
whole. The DPS policy cites examples of potential considerations 
indicating significance, including: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that loss of the discrete population segment would 
result in a significant gap in the range of the taxon; (3) evidence 
that the DPS represents the only surviving natural occurrence of a 
taxon that may be more abundant elsewhere as an introduced population 
outside its historic range; or, (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics.
    We believe that the Carolina and South Atlantic population segments 
persist in ecological settings unique for the taxon. This is evidenced 
by the fact that spawning habitat of each population grouping is found 
in separate and distinct ecoregions that were identified by The Nature 
Conservancy (TNC) based on the habitat, climate, geology, and 
physiographic differences for both terrestrial and marine ecosystems 
throughout the range of the Atlantic sturgeon along the Atlantic coast 
(Figure 1). TNC descriptions do not include detailed information on the 
chemical properties of the rivers within each ecoregion, but include an 
analysis of bedrock and surficial geology type because it relates to 
water chemistry, hydrologic regime, and substrate. It is well 
established that waters have different chemical properties (i.e., 
identities) depending on the geology of where the waters originate.
    Riverine spawning habitat of the Carolina population segment occurs 
within the Mid-Atlantic Coastal Plain ecoregion, which is described as 
consisting of bottomland hardwood forests, swamps, and some of the 
world's most active coastal dunes, sounds, and estuaries. Natural 
fires, floods, and storms are so dominant in this region that the 
landscape changes very quickly. Rivers routinely change their courses 
and emerge from their banks. The TNC lists the most

[[Page 61910]]

significant threats (sources of biological and ecological stress) in 
the region as: global climate change and rising sea-level; altered 
surface hydrology and landform alteration (e.g., flood-control and 
hydroelectric dams, inter-basin transfers of water, drainage ditches, 
breached levees, artificial levees, dredged inlets and river channels, 
beach renourishment, and spoil deposition banks and piles); a 
regionally receding water table, probably resulting from both over-use 
and inadequate recharge; fire suppression; land fragmentation, mainly 
by highway development; land-use conversion (e.g., from forests to 
timber plantations, farms, golf courses, housing developments, and 
resorts); the invasion of exotic plants and animals; air and water 
pollution, mainly from agricultural activities including concentrated 
animal feed operations; and over-harvesting and poaching of species. 
Many of the Carolina population segment's spawning rivers, located in 
the Mid-Coastal Plain, originate in areas of marl. Waters draining 
calcareous, impervious surface materials such as marl are likely to be 
alkaline, dominated by surface run-off, have little groundwater 
connection, and be seasonally ephemeral.
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    The riverine spawning habitat of the South Atlantic population 
segment occurs within the South Atlantic Coastal Plain ecoregion. TNC 
describes the South Atlantic Coastal Plain ecoregion as fall-line 
sandhills to rolling longleaf pine uplands to wet pine flatwoods; from 
small streams to large river systems to rich estuaries; from isolated 
depression wetlands to Carolina bays to the Okefenokee Swamp. Other 
ecological systems in the ecoregion include maritime forests on barrier 
islands, pitcher plant seepage bogs and Altamaha grit (sandstone) 
outcrops. The primary threats to biological diversity in the South 
Atlantic Coastal Plain listed

[[Page 61912]]

by TNC are intensive silvicultural practices, including conversion of 
natural forests to highly managed pine monocultures and the clear-
cutting of bottomland hardwood forests. Changes in water quality and 
quantity, caused by hydrologic alterations (impoundments, groundwater 
withdrawal, and ditching), and point and nonpoint pollution, are 
threatening the aquatic systems. Development is a growing threat, 
especially in coastal areas. Agricultural conversion, fire regime 
alteration, and the introduction of nonnative species are additional 
threats to the ecoregion's diversity. The South Atlantic DPS' spawning 
rivers, located in the South Atlantic Coastal Plain, are primarily of 
two types: brownwater (with headwaters north of the Fall Line, silt-
laden) and blackwater (with headwaters in the coastal plain, stained by 
tannic acids).
    Therefore, the ecoregion delineations support that the physical and 
chemical properties of the Atlantic sturgeon spawning rivers utilized 
by the Carolina and South Atlantic DPSs are unique to each population 
segment. Since reproductive isolation accounts for the discreteness of 
each population segment, the Carolina and South Atlantic population 
segments of Atlantic sturgeon are ``significant'' as defined in the DPS 
policy given that the spawning rivers for each population segment occur 
in a unique ecological setting.
    The loss of either the Carolina or the South Atlantic population 
segments of Atlantic sturgeon would create a significant gap in the 
range of the taxon. The loss of the Carolina population segment would 
result in a 475-mile (764-kilometer (km)) gap between the northern 
population segments and the South Atlantic population segment. The loss 
of the South Atlantic population segment would truncate the southern 
range of Atlantic sturgeon by greater than 150 miles (241 km). Though 
Atlantic sturgeon travel great distances in the marine environment and 
may use multiple river systems for foraging and nursery habitat, the 
range occupied by the Carolina and South Atlantic population segments 
would likely not be recolonized by a new, viable spawning population if 
either population segment was lost. Based on genetic analyses showing 
that fewer than two individuals per generation spawn outside their 
natal rivers (Secor and Waldman, 1999), we do not expect Atlantic 
sturgeon that originate from other population segments to re-colonize 
extirpated systems and establish new spawning populations, except 
perhaps over a long time frame (i.e., many Atlantic sturgeon 
generations). Therefore, the loss of either the Carolina or South 
Atlantic population segments would result in a significant gap in the 
range of Atlantic sturgeon over a long time frame, and negatively 
impact the species as a whole because the loss of either population 
segment would constitute an important loss of genetic diversity for the 
Atlantic sturgeon.
    The information presented above describes: (1) Persistence of the 
Carolina and South Atlantic population segments in ecological settings 
that are unique for the Atlantic sturgeon as a whole; and (2) evidence 
that loss of either population segment would result in a significant 
gap in the range of the taxon. Based on this information, we concur 
with the SRT's conclusion that the Carolina and South Atlantic 
population segments meet the discreteness and significance criteria 
outlined in the DPS policy. We hereafter refer to these DPSs as the 
Carolina and South Atlantic DPSs. Figure 2 shows the riverine and U.S. 
marine ranges of the Carolina and South Atlantic DPSs.
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[[Page 61913]]

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Conservation Status

    We will now consider the conservation status of the two DPSs in the 
Southeast Region's jurisdiction, the Carolina and South Atlantic DPSs, 
in relation to the ESA's standards for listing. We will determine 
whether each DPS meets the definition of ``endangered'' or 
``threatened'' as defined in section 3 of the ESA, and whether that 
status is a result of one or a combination of the factors listed under 
section 4(a)(1) of the ESA. An endangered species is ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species is one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.''

[[Page 61914]]

    The abundance of Atlantic sturgeon has decreased dramatically 
within the last 150 years. A major fishery for Atlantic sturgeon 
developed in 1870 when a caviar market was established (Smith and 
Clugston, 1997). Record landings in the U.S. were reported in 1890, 
with over 7,385,000 lbs (3,350,000 kg) of Atlantic sturgeon landed from 
coastal rivers along the entire Atlantic Coast (Smith and Clugston, 
1997; Secor and Waldman, 1999). Ten years after peak landings, the 
fishery collapsed in 1901, when less than 10 percent (650,365 lbs, 
295,000 kg) of the U.S. 1890 peak landings were reported. The landings 
continued to decline coastwide, reaching about 5 percent of the peak in 
1920. During the 1950s, the remaining U.S. fishery switched to 
targeting sturgeon for flesh, rather than caviar, and coastwide 
landings remained between 1 and 5 percent of the 1890 peak levels until 
the Atlantic sturgeon fishery was closed by ASMFC in 1998.
    The Carolina DPS includes all Atlantic sturgeon that spawn in the 
watersheds from the Roanoke River, Virginia, southward along the 
southern Virginia, North Carolina, and South Carolina coastal areas to 
the Cooper River. The marine range of Atlantic sturgeon from the 
Carolina DPS extends from the Bay of Fundy, Canada, to the Saint Johns 
River, Florida. While Atlantic sturgeon exhibit a high degree of 
spawning fidelity to their natal rivers, multiple riverine, estuarine, 
and marine habitats may serve various life (e.g., nursery, foraging, 
and migration) functions. Rivers known to have current spawning 
populations within the range of this DPS include the Roanoke, Tar-
Pamlico, Cape Fear, Waccamaw, and Pee Dee Rivers. There may also be 
spawning populations in the Neuse, Santee and Cooper Rivers, though it 
is uncertain at this time. Historically, both the Sampit and Ashley 
Rivers were documented to have spawning populations at one time. 
However, the spawning population in the Sampit River is believed to be 
extirpated and the current status of the spawning population in the 
Ashley River is unknown. Both rivers may be used as nursery habitat by 
young Atlantic sturgeon originating from other spawning populations. 
This represents our current knowledge of the river systems utilized by 
the Carolina DPS for specific life functions, such as spawning, nursery 
habitat, and foraging. However, fish from the Carolina DPS likely use 
other river systems than those listed here for their specific life 
functions. The Carolina DPS also includes Atlantic sturgeon held in 
captivity (e.g., aquaria, hatcheries, and scientific institutions) and 
which are identified as fish belonging to the Carolina DPS based on 
genetics analyses, previously applied tags, previously applied marks, 
or documentation to verify that the fish originated from (hatched in) a 
river within the range of the Carolina DPS, or is the progeny of any 
fish that originated from a river within the range of the Carolina DPS. 
NMFS has no records of Atlantic sturgeon from the Carolina DPS being 
held in captivity.
    Historical landings data indicate that between 7,000 and 10,500 
adult female Atlantic sturgeon were present in North Carolina prior to 
1890 (Armstrong and Hightower, 2002; Secor, 2002). Secor (2002) 
estimates that 8,000 adult females were present in South Carolina 
during that same timeframe. Prior reductions from the commercial 
fishery and ongoing threats have drastically reduced the numbers of 
Atlantic sturgeon within the Carolina DPS. Currently, the Atlantic 
sturgeon spawning population in at least one river system within the 
Carolina DPS has been extirpated, with a potential extirpation in an 
additional system. The abundance of the remaining river populations 
within the DPS, each estimated to have fewer than 300 spawning adults, 
is estimated to be less than 3 percent of what it was historically 
(ASSRT, 2007). Though directed fishing and possession of Atlantic 
sturgeon is no longer legal, the Carolina DPS continues to face threats 
such as habitat alteration and bycatch. The presence of dams has 
resulted in the loss of over 60 percent of the historical sturgeon 
habitat on the Cape Fear River and in the Santee-Cooper system. This 
has resulted in the loss of important spawning and juvenile 
developmental habitat and has reduced the quality of the remaining 
habitat by affecting water quality parameters (such as depth, 
temperature, velocity, and dissolved oxygen) that are important to 
sturgeon.
    The South Atlantic DPS includes all Atlantic sturgeon that spawn in 
the watersheds of the ACE Basin in South Carolina to the St. Johns 
River, Florida. The marine range of Atlantic sturgeon from the South 
Atlantic DPS extends from the Bay of Fundy, Canada, to the Saint Johns 
River, Florida. While Atlantic sturgeon exhibit a high degree of 
spawning fidelity to their natal rivers, multiple riverine, estuarine, 
and marine habitats may serve various life (e.g., nursery, foraging, 
and migration) functions. Rivers known to have current spawning 
populations within this DPS include the Combahee, Edisto, Savannah, 
Ogeechee, Altamaha, and Satilla Rivers. Historically, both the Broad-
Coosawatchie and St. Marys Rivers were documented to have spawning 
populations at one time; there is also evidence that spawning may have 
occurred in the St. Johns River or one of its tributaries. However, the 
spawning population in the St. Marys River, as well as any historical 
spawning population present in the St. Johns, is believed to be 
extirpated, and the status of the spawning population in the Broad-
Coosawatchie is unknown. Both the St. Marys and St. Johns Rivers are 
used as nursery habitat by young Atlantic sturgeon originating from 
other spawning populations. The use of the Broad-Coosawatchie by 
sturgeon from other spawning populations is unknown at this time. The 
presence of historical and current spawning populations in the Ashepoo 
River has not been documented; however, this river may currently be 
used for nursery habitat by young Atlantic sturgeon originating from 
other spawning populations. This represents our current knowledge of 
the river systems utilized by the South Atlantic DPS for specific life 
functions, such as spawning, nursery habitat, and foraging. However, 
fish from the South Atlantic DPS likely use other river systems than 
those listed here for their specific life functions. The South Atlantic 
DPS also includes Atlantic sturgeon held in captivity (e.g., aquaria, 
hatcheries, and scientific institutions) and which are identified as 
fish belonging to the South Atlantic DPS based on genetics analyses, 
previously applied tags, previously applied marks, or documentation to 
verify that the fish originated from (hatched in) a river within the 
range of the South Atlantic DPS, or is the progeny of any fish that 
originated from a river within the range of the South Atlantic DPS. Ten 
Atlantic sturgeon taken from the Altamaha River are currently being 
held at the Bears Bluff National Fish Hatchery in Warm Springs, 
Georgia, though it is not certain whether those fish were spawned in 
the Altamaha or were migrants from another river system. NMFS has no 
other records of Atlantic sturgeon from the South Atlantic DPS being 
held in captivity.
    Secor (2002) estimated that 8,000 spawning female Atlantic sturgeon 
were present in South Carolina. Historically, the population of 
spawning female Atlantic sturgeon in Georgia was estimated at 11,000 
fish per year prior to 1890 (Secor, 2002). Prior reductions from the 
commercial fishery and ongoing threats have drastically reduced

[[Page 61915]]

the numbers of Atlantic sturgeon within the South Atlantic DPS. 
Currently, the Atlantic sturgeon spawning population in one (possibly 
two) river systems within the South Atlantic DPS have been extirpated. 
The Altamaha River, with an estimated 343 spawning adults per year, is 
suspected to be less than 6 percent of its historical abundance, 
extrapolated from the 1890s commercial landings; the abundance of the 
remaining river populations within the DPS, each estimated to have 
fewer than 300 spawning adults, is estimated to be less than 1 percent 
of what it was historically (ASSRT, 2007). While the directed fishery 
that originally drastically reduced the numbers of Atlantic sturgeon 
has been closed, other impacts have contributed to their low population 
numbers, may have contributed to the extirpation of some spawning 
populations, and are likely inhibiting recovery of extant river 
populations. Historically, Atlantic sturgeon likely accessed all parts 
of the St. Johns River, as American shad were reported as far upstream 
as Lake Poinsett (reviewed in McBride, 2000). However, the construction 
of Kirkpatrick Dam (originally Rodman Dam) at river mile (RM) 95 (river 
km (RKM) 153) restricted migration to potential spawning and juvenile 
developmental habitat upstream. Approximately 63 percent of historical 
sturgeon habitat is believed to be blocked due to the dam (ASSRT, 
2007), and there is no longer a spawning population in the St. Johns 
River.
    Small numbers of individuals resulting from drastic reductions in 
populations, such as occurred with Atlantic sturgeon due to the 
commercial fishery, can remove the buffer against natural demographic 
and environmental variability provided by large populations (Berry, 
1971; Shaffer, 1981; Soule, 1980). Though the Carolina and South 
Atlantic DPSs, made up of multiple river populations of Atlantic 
sturgeon, were determined to be genetically discrete, interbreeding 
population units, the vast majority of Atlantic sturgeon return to 
their natal rivers to spawn, with fewer than two migrants per 
generation spawning outside their natal system (Wirgin et al., 2000; 
King et al., 2001; Waldman et al., 2002). Therefore, it is important to 
look at each riverine spawning population within each DPS when 
considering the effects of a small population size on the extinction 
risk for the DPS. Though there is no absolute population size above 
which populations are ``safe'' and below which they face an 
unacceptable risk of extinction (Gilpin and Soule, 1986; Soule and 
Simberloff, 1986; Ewens et al., 1987; Goodman, 1987; Simberloff, 1988; 
Thomas, 1990), some have argued that ``rules of thumb'' can and should 
be applied (Soule, 1987; Thompson, 1991). Salwasser et al. (1984) 
prescribe a minimum viable population size of at least 1,000 adults. 
Belovsky (1987) indicates that a minimum viable population in the range 
of 1,000 to 10,000 adults should be sufficient for a mid-sized 
vertebrate species. Soule (1987) suggests that minimum viable 
population sizes for vertebrate species should be in the ``low 
thousands'' or higher. Thomas (1990) offers a population size of 5,500 
as ``a useful goal,'' but suggests that where uncertainty is extreme 
``we should usually aim for population sizes from several thousand to 
ten thousand.'' In a NOAA Technical Memorandum ``Determining Minimum 
Viable Populations under the ESA,'' Thompson (1991) states the ``50/
500'' rule of thumb initially advanced by Franklin (1980) and Soule 
(1980) comes the closest of any to attaining ``magic number'' status. 
Franklin (1980) has suggested that, simply to maintain short-term 
fitness (i.e., prevent serious in-breeding and its deleterious 
effects), the minimum effective population size should be around 50. He 
further recommended that, to maintain sufficient genetic variability 
for adaptation to changing environmental conditions, the minimum 
effective population size should be around 500. Soule (1980) has 
pointed out that, above and beyond preserving short-term fitness and 
genetic adaptability, long-term evolutionary potential (at the species 
level) may well require a number of substantially larger populations. 
It is important to note that the 50/500 rule is cast in terms of 
effective population size, a concept introduced by Wright (1931). The 
effective population size refers to an ideal population of breeding 
individuals produced each generation by random union of an equal number 
of male and female gametes randomly drawn from the previous generation. 
To the extent that this ideal is violated in nature, the effective 
population size is generally smaller than the overall number of mature 
individuals in the population. It is not possible to calculate the 
effective population sizes of the riverine spawning populations in the 
Carolina or the South Atlantic DPS. However, even under ideal 
circumstances where the effective population size is equal to the 
overall numbers of adults, the spawning populations are all believed to 
be smaller than the 500 recommended by Thompson (1991) to maintain 
sufficient genetic variability for adaptation to changing environmental 
conditions, and certainly smaller than the 1,000 to 10,000 recommended 
by other authors. It is not known if certain riverine populations are 
at an abundance smaller than the minimum effective population size of 
50 that would prevent serious in-breeding (Thompson, 1991). Moreover, 
in some rivers, spawning by Atlantic sturgeon may not be contributing 
to population growth because of lack of suitable habitat and other 
stressors on juvenile survival and development.
    The concept of a viable population able to adapt to changing 
environmental conditions is critical to Atlantic sturgeon, and the low 
population numbers of every river population in the Carolina and South 
Atlantic DPSs put them in danger of extinction throughout their ranges; 
none of the populations are large or stable enough to provide with any 
level of certainty for continued existence of Atlantic sturgeon in this 
part of its range. While the directed fishery that originally 
drastically reduced the numbers of Atlantic sturgeon has been closed, 
recovery of depleted populations is an inherently slow process for a 
late-maturing species such as Atlantic sturgeon, and they continue to 
face a variety of other threats that contribute to their risk of 
extinction. Their late age at maturity provides more opportunities for 
individual Atlantic sturgeon to be removed from the population before 
reproducing. While a long life-span also allows multiple opportunities 
to contribute to future generations, it also increases the timeframe 
over which exposure to the multitude of threats facing the Carolina and 
South Atlantic DPS can occur. These threats include the loss, 
reduction, and degradation of habitat resulting from dams, dredging, 
and changes in water quality parameters (such as depth, temperature, 
velocity, and dissolved oxygen). Even with a moratorium on directed 
fisheries, bycatch is a threat to both the Carolina and South Atlantic 
DPSs. Fisheries known to incidentally catch Atlantic sturgeon occur 
throughout the marine range of the species and in some riverine waters 
as well. Because Atlantic sturgeon mix extensively in marine waters and 
may use multiple river systems for spawning, foraging, and other life 
functions, they are subject to being caught in multiple fisheries 
throughout their range. In addition to direct mortality, stress or 
injury to Atlantic sturgeon taken as bycatch but released alive may 
result in increased susceptibility to other threats, such as

[[Page 61916]]

poor water quality (e.g., exposure to toxins). This may result in 
reduced ability to perform major life functions, such as foraging and 
spawning, or even post-capture mortality. While some of the threats to 
the Carolina and South Atlantic DPS have been ameliorated or reduced 
due to the existing regulatory mechanisms, such as the moratorium on 
directed fisheries for Atlantic sturgeon, bycatch is currently not 
being addressed through existing mechanisms. Further, water quality 
continues to be a problem even with existing controls on some pollution 
sources and water withdrawal, and dams continue to curtail and modify 
habitat, even with the Federal Power Act.
    We have reviewed the status review report, as well as other 
available literature and information, and have consulted with 
scientists and fishery resource managers familiar with Atlantic 
sturgeon in the Carolina and South Atlantic DPSs. After reviewing the 
best scientific and commercial information available, we find that both 
the Carolina and South Atlantic DPSs are in danger of extinction 
throughout their ranges and thus meet the ESA's definition of an 
endangered species. Atlantic sturgeon populations declined 
precipitously decades ago due to directed commercial fishing. The 
failure of Atlantic sturgeon numbers within the Carolina and South 
Atlantic DPSs to rebound even after the moratorium on directed fishing 
was established in 1998 indicates that impacts and threats from limits 
on habitat for spawning and development, habitat alteration, and 
bycatch are responsible for the risk of extinction faced by both DPSs. 
In addition, the persistence of these impacts and threats points to the 
inadequacy of existing regulatory mechanisms to address and reduce 
habitat alterations and bycatch. We will address the threats of habitat 
alteration, bycatch, and the inadequacy of regulatory mechanisms and 
their contributions to the endangered statuses of the Carolina and 
South Atlantic DPSs in detail in the following sections of this 
proposed rule.

Analysis of Section 4(a)(1) Factors' Effects on the Species

    The ESA requires us to determine whether any species is endangered 
or threatened because of any of the following factors: (A) Present or 
threatened destruction, modification, or curtailment of habitat or 
range; (B) overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. Listing determinations are made 
solely on the best scientific and commercial data available and after 
taking into account any efforts being made by any state or foreign 
nation to protect the species. The SRT examined each of the 
aforementioned five factors for their impacts on the Atlantic sturgeon 
DPSs. The following is a summary of its relevant findings, any 
additional information that has become available since the status 
review report was published, and the conclusions that we have made 
based on the available information.

A. Present or Threatened Destruction, Modification, or Curtailment of 
the Species' Habitat or Range

    Habitat alterations considered by the SRT that affect the status of 
sturgeon populations include: dam and tidal turbine construction and 
operation; dredging, disposal, and blasting; and water quality 
modifications, such as changes in levels of DO, water temperature, and 
contaminants. Atlantic sturgeon, like all anadromous fish, are 
vulnerable to a host of habitat impacts because they use rivers, 
estuaries, bays, and the ocean at various points of their life. In 
addition to the habitat alterations considered by the SRT, other 
emerging threats to habitat considered in this section are drought, 
intra- and inter-state water allocation issues, and climate change. 
These threats have the potential to further exacerbate habitat 
modifications evaluated by the SRT. Because they were not evaluated in 
the status review report, they are considered in more detail in this 
section. In this section, we summarize the threats for each DPS that we 
believe represent a present or threatened destruction, modification or 
curtailment of the DPS's habitat or range and are contributing to the 
endangered status of both DPSs.

Dams

    Dams are a threat to the Carolina and South Atlantic DPS that 
contributes to their endangered status by curtailing the extent of 
available habitat, as well as modifying sturgeon habitat downstream 
through a reduction in water quality. As noted in the status review 
report, dams for hydropower generation, flood control, and navigation 
adversely affect Atlantic sturgeon habitat by impeding access to 
spawning, developmental and foraging habitat, modifying free-flowing 
rivers to reservoirs, physically damaging fish on upstream and 
downstream migrations, and altering water quality in the remaining 
downstream portions of spawning and nursery habitat. Attempts to 
minimize the impacts of dams using measures such as fish passage have 
not proven beneficial to Atlantic sturgeon, as they do not regularly 
use existing fish passage devices, which are generally designed to pass 
pelagic fish. To date, only four Atlantic sturgeon have been documented 
to have passed via a fish lift (three at the St. Stephens fish lift in 
South Carolina and one at the Holyoke Dam in Massachusetts), as these 
passage facilities are not designed to accommodate adult-sized 
sturgeon. While there has not been a large loss of Atlantic sturgeon 
habitat throughout the entire species' range due to the presence of 
dams, individual riverine systems have been severely impacted by dams, 
as access to large portions of historical sturgeon spawning and 
juvenile developmental habitat has been eliminated or restricted. The 
SRT used GIS tools and dam location data collected by Oakley (2003) as 
reference points for river kilometer measurements to map historical 
rivers in which Atlantic sturgeon spawned. This information was then 
used to determine the number of kilometers of available habitat. Within 
the Carolina and South Atlantic DPSs, the Cape Fear, Santee-Cooper, and 
St. Johns River systems have lost greater than 60 percent of the 
habitat historically used for spawning and juvenile development.
    The Cape Fear River has three locks and dams (constructed from 1915 
to 1935) between Wilmington and Fayetteville that are located below the 
fall line; two additional dams, Buckhorn and B. Everette Jordan, are 
located above the fall line. Atlantic sturgeon movement is blocked at 
the first lock and dam located in Riegelwood, North Carolina, which was 
constructed in 1915. Pelagic species can pass over the three locks and 
dams during high water, but the benthic Atlantic sturgeon is not known 
to pass over these three locks/dams. No Atlantic sturgeon have been 
captured upstream of Lock and Dam <greek-i>1 despite extensive sampling 
efforts (Moser et al., 1998). Exact historical spawning locations are 
unknown in the Cape Fear River, but Atlantic sturgeon spawning is 
generally believed to occur in flowing water between the salt front and 
fall line of large rivers (Borodin, 1925; Leland, 1968; Scott and 
Crossman, 1973; Crance, 1987; Bain et al., 2000). Therefore, sturgeon 
researchers judge the fall line to be the likely upper limit of 
spawning habitat. Using the fall line as a guide, only 36 percent of 
the historical habitat is available to Atlantic sturgeon. In some 
years, the salt water interface reaches the first lock and dam; 
therefore, spawning adults in the Cape Fear River either do not spawn 
in such

[[Page 61917]]

years or spawn in the major tributaries of the Cape Fear River (i.e., 
Black River or Northeast Cape Fear Rivers) that are not obstructed by 
dams.
    The Santee-Cooper Hydroelectric Project is located in the coastal 
plain of the Santee Basin on the Santee and Cooper Rivers, South 
Carolina. The project was finished in 1942 and includes Lake Marion, 
which is impounded by the Santee Dam (Wilson Dam) on the Santee River 
at RM 87 (RKM 140), and Lake Moultrie, which is impounded by the 
Pinopolis Dam on the Cooper River at RM 48 (RKM 77). Using the fall 
line as the upper region of spawning habitat, it is estimated that only 
38 percent of the historical habitat is available to Atlantic sturgeon 
today. Although fish lifts operate at the Pinopolis and St. Stephens 
Dams during the spring, observations of sturgeon in the lifts are 
extremely rare (traditional fish passage designs are not typically 
successful for sturgeon). There is no record of an adult Atlantic 
sturgeon being lifted, although three dead Atlantic sturgeon were 
observed in Lake Marion between 1995 and 1997, and in 2007, an Atlantic 
sturgeon entered the St. Stephens fishway and was physically removed 
and translocated downstream into the Santee River (A. Crosby, SCDNR, 
Pers. Comm.)
    In addition to blocking access to habitat, dams can degrade 
spawning, nursery, and foraging habitat downstream by reducing water 
quality. Flow, water temperature, and oxygen levels in the Roanoke 
River are affected by the Kerr Dam and the Gaston Dam/Roanoke Rapids 
facilities, which engage in peaking operations. Riverine water flow has 
already been modified by the dam operators during the striped bass 
spawning season to simulate natural flow patterns; these modifications 
undoubtedly benefit Atlantic sturgeon. Regardless of the temporary 
modifications, lower water temperatures resulting from the hypolimnetic 
discharge from Kerr Dam have caused temporal shifts in the spawning 
peaks for both American shad and striped bass and likely have had the 
same impact for other diadromous species, including Atlantic sturgeon 
(ASSRT, 2007). High flows from Kerr Dam during the summer are coupled 
with high ambient temperatures and an influx of swamp water with low 
DO, creating a large, hypoxic plume within the river. Fish kills have 
been documented to occur during this time (ASSRT, 2007), and sturgeon 
are more highly sensitive to low DO (less than 5 milligrams per liter 
(mg/L)) than other fish species (Niklitschek and Secor, 2009a, 2009b). 
Low DO in combination with high temperature is particularly problematic 
for Atlantic sturgeon, and studies have shown that juvenile Atlantic 
sturgeon experience lethal and sublethal (metabolic, growth, feeding) 
effects as DO drops and temperatures rise (Niklitschek and Secor, 
2009a, 2009b; Niklitschek and Secor, 2005; Secor and Gunderson, 1998). 
Therefore, it is likely that dam operations are negatively affecting 
Atlantic sturgeon nursery habitat in the lower Roanoke River.

Dredging

    Dredging is a present threat to both the Carolina and South 
Atlantic DPSs and is contributing to their endangered status by 
modifying the quality and availability of Atlantic sturgeon habitat. 
Riverine, nearshore, and offshore areas are often dredged to support 
commercial shipping and recreational boating, construction of 
infrastructure, and marine mining. Environmental impacts of dredging 
include the direct removal/burial of organisms; turbidity/siltation 
effects; contaminant resuspension; noise/disturbance; alterations to 
hydrodynamic regime and physical habitat; and actual loss of riparian 
habitat (Chytalo, 1996; Winger et al., 2000). According to Smith and 
Clugston (1997), dredging and filling impact important habitat features 
of Atlantic sturgeon as they disturb benthic fauna, eliminate deep 
holes, and alter rock substrates. To reduce the impacts of dredging on 
anadromous fish species, most of the Atlantic states impose work 
restrictions during sensitive time periods (spawning, migration, 
feeding) when anadromous fish are present. NMFS also imposes seasonal 
restrictions to protect shortnose sturgeon populations (where present) 
through Section 7 consultations that may have the added benefit of 
protecting Atlantic sturgeon where the two species co-occur. Within the 
Carolina DPS, dredging operations (including the blasting of rock) on 
the lower Cape Fear River, Brunswick River, and port facilities at the 
U.S. Army's Sunny Point Military Ocean Terminal and Port of Wilmington 
are extensive. To protect diadromous fish, restrictions are placed on 
dredging to avoid sensitive seasons and locations, such as potential 
spawning habitat (February 1 through June 30) and suspected nursery 
grounds (April 1 through September 30). However, while the restrictions 
prevent dredging from occurring when Atlantic sturgeon are expected to 
be present, the effects of dredging on Atlantic sturgeon habitat remain 
long after the dredging has been completed. Moser and Ross (1995) found 
that some of the winter holding sites favored by sturgeon in the lower 
Cape Fear River estuary also support very high levels of benthic 
infauna and may be important feeding stations. Repeated dredging in the 
Cape Fear River can modify sturgeon habitat through the removal or 
burial of benthic infauna in feeding grounds and creation of unsuitable 
substrate in spawning grounds (ASSRT, 2007). Similar habitat 
modifications are occurring in the Cooper River, which flows into 
Charleston Harbor, one of the busiest ports on the Atlantic Coast, and 
is dredged regularly. The river channel is maintained by dredging all 
the way to the Pinopolis Dam. No seasonal restrictions are placed on 
dredging in the Cooper River, potentially interrupting spawning 
activities (ASSRT, 2007).
    In the South Atlantic DPS, maintenance dredging in Atlantic 
sturgeon nursery habitat in the Savannah River is frequent, and 
substantial channel deepening took place in 1994. The Georgia Ports 
Authority is seeking to expand its port facility on the Savannah River. 
Within the 1999 Water Resources Development Act, Congress authorized 
the deepening of the Savannah Navigation Channel from the current depth 
of -42 to -48 ft (-12.8 to -14.6 m) mean low water. Hydrodynamic and 
water quality models have been developed to predict changes in water 
quality across depth and throughout the channel. The channel deepening 
is predicted to alter overall water quality (e.g., salinity and DO), 
creating inhospitable foraging/resting habitat in the lower Savannah 
River for sturgeon. The lower Savannah River is heavily industrialized 
and serves as a major shipping port. Nursery habitat in the lower river 
has been heavily impacted by diminished water quality and 
channelization. Reduced DO levels and upriver movement of the salt 
wedge are predicted to result from channel deepening. Sturgeon are 
highly sensitive to low DO, more so than other fish species 
(Niklitschek and Secor, 2009a, 2009b). Because Atlantic sturgeon spawn 
above the interface between fresh water and salt water, the upriver 
movement of the salt wedge will curtail the extent of Atlantic sturgeon 
habitat in the Savannah River. Dredging also commonly occurs within the 
St. Johns River and has been linked to the reduction in submerged 
aquatic vegetation where Atlantic sturgeon likely forage (Jordan, 
2002). Though there is currently no resident spawning population in the 
St. Johns, it still provides nursery habitat for juvenile Atlantic 
sturgeon in the South Atlantic DPS (NMFS and USFWS, 1998). Over 60

[[Page 61918]]

percent of the historical sturgeon habitat in the St. Johns River has 
already been curtailed by the presence of a dam, and dredging modifies 
the quality of the remaining nursery habitat in the river.

Water Quality

    Degraded water quality is a present threat to the Carolina and 
South Atlantic DPSs and is contributing to their endangered status by 
modifying and curtailing the extent of available habitat for spawning 
and nursery areas. Atlantic sturgeon rely on a variety of water quality 
parameters to successfully carry out their life functions. Low DO and 
the presence of contaminants modify the quality of Atlantic sturgeon 
habitat and in some cases, curtail the extent of suitable habitat for 
life functions. Secor (1995) noted a correlation between low abundances 
of sturgeon during this century and decreasing water quality caused by 
increased nutrient loading and increased spatial and temporal frequency 
of hypoxic conditions. Of particular concern is the high occurrence of 
low DO coupled with high temperatures in the river systems throughout 
the range of the Carolina and South Atlantic DPSs. Sturgeon are more 
highly sensitive to low DO than other fish species (Niklitschek and 
Secor, 2009a, 2009b) and low DO in combination with high temperature is 
particularly problematic for Atlantic sturgeon. Studies have shown that 
juvenile Atlantic sturgeon experience lethal and sublethal (metabolic, 
growth, feeding) effects as DO drops and temperatures rise (Niklitschek 
and Secor, 2009a, 2009b; Niklitschek and Secor, 2005; Secor and 
Gunderson, 1998). Water quality within the river systems in the range 
of the Carolina and South Atlantic DPSs is also negatively impacted by 
contaminants and large water withdrawals.
    For the Carolina DPS, water quality in the Pamlico system, 
especially in the lower Neuse River, is highly degraded (Paerl et al., 
1998; Qian et al., 2000; Glasgow et al., 2001). The entire basin has 
been designated as nutrient-sensitive, and additional regulatory 
controls are being implemented to improve water quality. Both the Neuse 
and Pamlico portions of the estuary have been subject to seasonal 
episodes of anoxia that significantly affect the quality of Atlantic 
sturgeon nursery habitat. Concentrated animal feeding operations 
(CAFOs) cause at least some portion of the current water quality 
problems in the Pamlico watershed (Mallin and Cahoon, 2003). Farms that 
produce hogs, turkeys, and chickens have proliferated throughout the 
coastal portion of the basin in the last decade, with increases in both 
aquatic and atmospheric deposition of nitrogenous waste products. North 
Carolina passed a moratorium in 1997 limiting additional hog operations 
and is conducting a study of measures to address the problem; the 
moratorium was renewed in 1999 and 2003. Water quality in the Cape Fear 
River is poor for aquatic life, due largely to industrial development 
and use, including the Port of Wilmington and numerous industrial 
point-source discharges. Development of CAFOs in the coastal portion of 
the Cape Fear River basin has been especially heavy (most concentrated 
operations of CAFOs occur in the Cape Fear River drainage within North 
Carolina) and contributes to both atmospheric and aquatic inputs of 
nitrogenous contamination, possibly causing DO levels to regularly fall 
below the 5 mg/L state standard (Mallin and Cahoon, 2003). In recent 
years, fish kills have been observed, usually as a result of blackwater 
swamps (with low DO) being flushed after heavy rainfall.
    Industrialization also threatens the habitat of the Carolina DPS. 
Paper and steel mills in the Winyah Bay system, which includes the 
Waccamaw, Pee Dee, and Sampit rivers, have impacted water quality. 
Riverine sediment samples contain high levels of various toxins 
including dioxins (NMFS and USFWS, 1998). Though the effects of these 
contaminants on Atlantic sturgeon are unknown, Atlantic sturgeon are 
particularly susceptible to impacts from contaminated sediments due to 
their benthic foraging behavior and long-life span, and effects from 
these compounds on fish include production of acute lesions, growth 
retardation, and reproductive impairment (Cooper, 1989; Sinderman, 
1994). It should be noted that the effect of multiple contaminants or 
mixtures of compounds at sublethal levels on fish has not been 
adequately studied. Atlantic sturgeon use marine, estuarine, and 
freshwater habitats and are in direct contact through water, diet, or 
dermal exposure with multiple contaminants throughout their range.
    Habitat utilized by the South Atlantic DPS in the Savannah River 
has also been modified by mercury contamination (ASSRT, 2007). While 
water quality in the Altamaha River is good at this time, the drainage 
basin is dominated by silviculture and agriculture, with two paper 
mills and over two dozen other industries or municipalities discharging 
effluent into the river. Nitrogen and phosphorus concentrations are 
increasing, and eutrophication and loss of thermal refugia are growing 
concerns for the South Atlantic DPS. In the Ogeechee River, the primary 
source of pollution results from non-point sources, which results in 
nutrient-loading and decreases in DO. These problems result from the 
cumulative effect of activities of many individual landowners or 
managers. The Ogeechee River Basin Watershed Protection Plan developed 
by the Georgia Environmental Protection Division (GAEPD, 2001b) states 
that because there are so many small sources of non-point loading 
spread throughout the watershed, non-point sources of pollution cannot 
effectively be controlled by state agency permitting and enforcement, 
even where regulatory authority exists. The increases in nutrients and 
resulting decreases in DO are coupled with increases in water 
temperature resulting from clearing of the riparian canopy and 
increased paved surface areas. Downstream sturgeon nursery habitat is 
compromised during hot, dry summers when water flow is minimal, and 
non-point sources of hypoxic waters have a greater impact on the system 
as potential thermal refugia are lost when the aquifer is lowered. 
Since 1986, average summer DO levels in the Ogeechee have dropped to 
approximately 4 mg/L (GAEPD, 2001b). Low DO (less than 5 mg/L), most 
likely due to non-point sources, was a common occurrence observed 
during 1998 and 1999 water quality surveys (GAEPD, 2002) in the Satilla 
River, which serves as both spawning and nursery habitat for sturgeon 
in the South Atlantic DPS. The extirpation of the Atlantic sturgeon 
spawning population in the St. Marys River is believed to have been 
caused by reduced DO levels during the summer in the nursery habitat, 
probably due to eutrophication from non-point source pollution (ASSRT, 
2007). Both the St. Marys and St. Johns Rivers continue to be used as 
nursery habitat by Atlantic sturgeon in the South Atlantic DPS; 
however, low DO is a common occurrence during the summer months when 
water temperatures rise. At times, it is so severe in the St. Marys 
that it completely eliminates juvenile nursery habitat during the 
summer (D. Peterson, UGA, Pers. Comm.).
    Water allocation issues are a growing threat in the Southeast and 
exacerbate existing water quality problems. Taking water from one basin 
and transferring it to another fundamentally and irreversibly alters 
natural water flows in both the originating and receiving basins, which 
can affect DO levels, temperature, and the ability of the basin of 
origin to assimilate pollutants

[[Page 61919]]

(Georgia Water Coalition, 2006). Water allocation issues increasingly 
threaten to exacerbate the present threat of degraded water quality on 
the endangered status of the Carolina DPS. Even with its generous 
natural supply of water, North Carolina is experiencing problems where 
somewhat limited natural availability of water is coupled with high 
demand or competition among water users. Some of these emerging 
pressure points are the Central Coastal Plain, where the Cretaceous 
aquifers have a relatively slow recharge rate; the headwater areas of 
the Piedmont river basins, where streamflows are greatly reduced during 
dry weather; and some areas near the coast and on the Outer Banks, 
where the natural availability of fresh water is limited (NCDENR, 
2001a). Interbasin water transfers are increasingly being looked at to 
deal with the inadequate water availability. In 1993, the North 
Carolina Legislature adopted the Regulation of Surface Water Transfers 
Act (G.S. Sec.  143-215.22I). This law regulates large surface water 
transfers between river basins by requiring a certificate from the 
North Carolina Environmental Management Commission. The act has been 
modified several times since it was first adopted, most recently in 
2007 when G.S. Sec.  143-215.22I was repealed and replaced with G.S. 
Sec.  143-215.22L. A transfer certificate is required for a new 
transfer of 2 million gallons per day (mgd) (7,600 m\3\pd) or more and 
for an increase in an existing transfer by 25 percent or more (if the 
total including the increase is more than 2 mgd). Certificates are not 
required for facilities that existed or were under construction prior 
to July 1, 1993, up to the full capacity of that facility to transfer 
water, regardless of the transfer amount.
    The North Carolina Department of Environment and Natural Resources 
reports that 20 facilities, with a combined average (not maximum) daily 
transfer of 66.5 mgd (252,000 m\3\pd), were grandfathered in when G.S. 
Sec.  143-215.22I was enacted (NCDENR, 2009). Since then, five 
additional facilities have received certificates to withdraw up to a 
combined maximum total of 167.5 mgd (634,000 m\3\pd). The most 
significant certified interbasin transfer in this group is the 
withdrawal of 60 mgd (227,000 m\3\pd) of water from Lake Gaston (part 
of the Roanoke River Basin) by Virginia Beach, Virginia. Virginia Beach 
began pumping in 1998 following a very lengthy and contested Federal 
Energy Regulatory Commission (FERC) approval process, during which 
North Carolina opposed the withdrawals (NCDENR, 2001b). Certificates 
are pending for three facilities, totaling almost 60 mgd (227,000 
m\3\pd). This includes the Kerr Lake Regional Water System (KLRWS), a 
regional provider of drinking water. The KLRWS has an existing, 
grandfathered, surface water transfer capacity of 10 mgd (38,000 
m\3\pd). The grandfathered capacity allows the system to move water 
from the Roanoke River Basin (Kerr Lake) to sub-basins of the Tar-
Pamlico River Basin. On February 18, 2009, KLRWS submitted a Notice of 
Intent to Request an Interbasin Transfer Certificate to the 
Environmental Management Commission. In that notice, KLRWS requested to 
increase the authorized transfer from 10 mgd to 24 mgd (38,000 m\3\pd 
to 91,000 m\3\pd), and to transfer 2.4 mgd (9,100 m\3\pd) from the 
Roanoke River Basin to the Neuse River Basin. These transfer amounts 
are based on water use projections to the year 2040.
    Water allocation issues also increasingly threaten to exacerbate 
the present threat of degraded water quality on the endangered status 
of the South Atlantic DPS. Water allocation issues are occurring on the 
Atlantic Coast of South Carolina and Georgia (Ruhl, 2003). This area is 
served by five major rivers--the Savannah, Altamaha (including its two 
major tributaries, the Oconee and Ocmulgee rivers), Ogeechee, Satilla, 
and St. Marys Rivers. A 2006 study by the Congressional Budget Office 
(CBO) reported that Georgia had the sixth highest population growth 
(26.4 percent) in the nation, followed by Florida (23.5 percent) (CBO, 
2006). The University of Georgia (UGA) reports that the per capita 
water use in Georgia has been estimated to be 8 to 10 percent greater 
than the national average, and 17 percent higher than per capita use in 
neighboring states (UGA, 2002). Water shortages have already occurred 
and are expected to continue due to increasing periods of drought 
coupled with the rapid population growth expected in the region over 
the next 50 years (Cummings et al., 2003). Two of the largest and most 
rapidly expanding urban areas in the Savannah River basin, Augusta-
Richmond County and Savannah, currently utilize both ground water and 
surface water for drinking water uses (GAEPD, 2001a). Surface water use 
in the Savannah River basin is expected to increase in the near future, 
due to a population increase in the basin. Predictions for 2050 
estimate the population will increase to nearly 900,000 (GAEPD, 2001a). 
It is important to note that the two water supply sources are not 
independent, because ground water discharge to streams is important in 
maintaining dry-weather flow. Thus, withdrawal of ground water also 
results in reduction in surface water flow.
    The Vogtle Electric Generating Plant consists of two nuclear 
reactors and currently uses up to 64 mgd of water from the Savannah 
River to generate power. In March 2008, the Southern Nuclear Operating 
Company applied to the Nuclear Regulatory Commission for a license to 
build two additional nuclear reactors at the plant, increasing the 
potential water usage to 80 mgd. Up to 100 mgd (379,000 m\3\pd) of 
Savannah River water may be withdrawn to support the growth of South 
Carolina communities located outside of the Savannah River basin, such 
as Greenville and Beaufort County (Spencer and Muzekari, 2002). While 
Georgia has laws restricting interbasin transfers of water, South 
Carolina has yet to adopt stream flow protections and does not regulate 
surface water withdrawals (Rusert and Cummings, 2004). Savannah has 
been withdrawing water from its coastal aquifer since the city became 
established. However, Savannah has grown to the point that the aquifer 
has been depleted over 100 ft (31 m) beneath the city due to growth and 
increased water usage. This decrease in aquifer storage water has 
resulted in salt water intrusion into the water wells used by Hilton 
Head, just north of Savannah. Currently, 5 of Hilton Head's 12 wells 
are unusable and the problem is expected to escalate if no action is 
taken to prevent further salt water intrusion. The South Carolina team 
on the Savannah River Basin Advisory Group has begun looking at 
withdrawing surface water from the Savannah River to ease the aquifer 
problem (State of South Carolina, 2007; Spencer and Muzekari, 2002).
    New surface water withdrawal permits in the Savannah, Ogeechee, and 
Altamaha Rivers pose potential threats to water quality in those rivers 
(Alber and Smith, 2001). Approximately 126,500 people depend on the 
Altamaha basin for water. The Ocmulgee River, a tributary of the 
Altamaha, is located in North Georgia and passes through Atlanta and 
Macon before joining the Altamaha River. Of the seven river basins in 
Georgia, the Ocmulgee River Basin has the highest population of 
1,714,722 people. The Ocmulgee River Basin is home to a diverse 
industrial and attraction base, from agriculture to defense. It has the 
highest agriculture production and the most agricultural water 
withdrawal permits in Georgia (Fisher et al., 2003).

[[Page 61920]]

    It is not known how much water is already being removed from rivers 
utilized by the South Atlantic DPS for spawning and nursery habitat 
because there is little information concerning actual withdrawals and 
virtually no information concerning water discharges. This is 
particularly the case for municipal and industrial uses because water 
use permits are not required for withdrawals less than 100,000 gpd (379 
m\3\pd) (Cummings et al., 2003) and discharge permits are not required 
unless discharge contains selected toxic materials. Agricultural water 
use permits are not quantified in any meaningful way, thus neither 
water withdrawals nor return flows are measured (Fisher et al., 2003). 
Large withdrawals of water (such as those for municipal use) result in 
reduced water quality (altered flows, higher temperatures, and lowered 
DO), and reduced water quality is already contributing to the 
endangered status of the South Atlantic DPS. Therefore, water 
withdrawals from the rivers in the range of the South Atlantic DPS, 
which are highly likely to occur based on current water shortages and 
increasing demand, threaten to exacerbate water quality problems that 
are currently modifying and curtailing Atlantic sturgeon habitat in the 
South Atlantic DPS.

Climate Change

    Climate change threatens to exacerbate the effects of modification 
and curtailment of Atlantic sturgeon habitat caused by dams, dredging, 
and reduced water quality on the endangered status of the Carolina and 
South Atlantic DPSs. A major advance in climate change projections is 
the large number of simulations available from a broader range of 
climate models, run for various emissions scenarios. The 
Intergovernmental Panel on Climate Change (IPCC) reports in its 
technical paper ``Climate Change and Water'' that best-estimate 
projections from models indicate that decadal average warming over each 
inhabited continent by 2030 (i.e., over the next 20-year period) is 
insensitive to the choice of emissions scenarios and is ``very likely'' 
to be at least twice as large (around 0.36 degrees Fahrenheit or 0.2 
degrees Celsius per decade) as the corresponding model-estimated 
natural variability during the 20th century (IPCC, 2008). Continued 
greenhouse gas emissions at or above current rates under non-mitigation 
emissions scenarios would cause further warming and induce many changes 
in the global climate system during the 21st century, with these 
changes ``very likely'' to be larger than those observed during the 
20th century. In addition, the IPCC expects the rate of warming to 
accelerate in the coming decades. Because 20 years is equal to at least 
one generation of Atlantic sturgeon (ASSRT, 2007), and possibly 
multiple generations in the Southeast where Atlantic sturgeon may 
mature as early as 5 years (Smith et al., 1982), the modifying effects 
of climate change over the next 20 years on vital parameters of the 
Carolina and South Atlantic DPS' habitat will occur on a scale relevant 
to their endangered status. Researchers anticipate that the frequency 
and intensity of droughts and floods will change across the nation 
(CBO, 2006). The IPCC report states that the most important societal 
and ecological impacts of climate change in North America stem from 
changes in surface and groundwater hydrology (IPCC, 2008).
    Both the Carolina and South Atlantic DPSs are within a region the 
IPCC predicts will experience decreases in precipitation. Since the 
status review report was completed, the Southeast experienced 
approximately 3 years of drought. During this time, South Carolina 
experienced drought conditions that ranged from moderate to extreme 
(South Carolina State Climatology Office, 2008). From 2006 until mid-
2009, Georgia experienced the worst drought in its history. In 
September 2007, many of Georgia's rivers and streams were at their 
lowest levels ever recorded for the month, and new record low daily 
streamflows were recorded at 15 rivers with 20 or more years of data in 
Georgia (USGS, 2007). The drought worsened in September 2008. All 
streams in Georgia except those originating in the extreme southern 
counties were extremely low. While Georgia has periodically undergone 
periods of drought--there have been 6 periods of drought lasting from 2 
to 7 years since 1903 (USGS, 2000)--drought frequency appears to be 
increasing (Ruhl, 2003). Abnormally low stream flows restrict access to 
habitat areas, reduce thermal refugia, and exacerbate water quality 
issues, such as water temperature, reduced DO, nutrient levels, and 
contaminants.
    The Carolina and South Atlantic DPSs are already threatened by 
reduced water quality resulting from dams, inputs of nutrients, 
contaminants from CAFOs, industrial activities, and non-point sources, 
and interbasin transfers of water. The IPCC report projects with high 
confidence that higher water temperatures and changes in extremes in 
this region, including floods and droughts, will affect water quality 
and exacerbate many forms of water pollution--from sediments, 
nutrients, dissolved organic carbon, pathogens, pesticides, and salt, 
as well as thermal pollution, with possible negative impacts on 
ecosystems. In addition, sea-level rise is projected to extend areas of 
salinization of groundwater and estuaries, resulting in a decrease of 
freshwater availability for humans and ecosystems in coastal areas. 
Some of the most populated areas of this region are low-lying, and the 
threat of salt water entering into its aquifers with projected sea-
level rise is a concern (U.S. Global Research Group, 2004). Existing 
water allocation issues would be exacerbated, leading to an increase in 
reliance on interbasin water transfers to meet municipal water needs, 
further stressing water quality. Dams, dredging, and poor water quality 
have already modified and curtailed the extent of suitable habitat for 
Atlantic sturgeon spawning and nursery habitat. Changes in water 
availability (depth and velocities) and water quality (temperature, 
salinity, DO, contaminants, etc.) in rivers and coastal waters 
inhabited by Atlantic sturgeon resulting from climate change will 
further modify and curtail the extent of suitable habitat for the 
Carolina DPS. Effects could be especially harmful since these 
populations have already been reduced to low numbers. The spawning 
populations within the Carolina DPS are all estimated to number fewer 
than the 500 recommended by Thompson (1991) to maintain sufficient 
genetic variability for adaptation to changing environmental 
conditions, and certainly smaller than the 1,000 to 10,000 recommended 
by other authors (Salwasser et al., 1984; Belovsky, 1987; Soule, 1987; 
Thomas, 1990).
    The SRT concluded that habitat modifications due to the placement 
of dams, dredging, and degraded water quality present a moderate to 
moderately high threat to all river populations within the Carolina 
DPS, with the exception of the Roanoke River. For the South Atlantic 
DPS, the SRT concluded that dredging and water quality issues are 
having a moderately low to moderate impact on the river populations. We 
believe that the modification and curtailment of Atlantic sturgeon 
habitat resulting from dams, dredging, and degraded water quality is 
contributing to the endangered status of both the Carolina and South 
Atlantic DPSs. Further, additional threats arising from water 
allocation and climate change threaten to exacerbate water quality 
problems already present throughout the range of both DPSs. Existing 
water allocation issues will

[[Page 61921]]

likely be compounded by population growth and potentially climate 
change. Climate change is also predicted to elevate water temperatures 
and exacerbate nutrient-loading, pollution inputs, and lower DO, all of 
which are current threats to the Carolina and South Atlantic DPSs.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    Overutilization for commercial purposes is a factor that 
contributed to the historical drastic decline in Atlantic sturgeon 
populations throughout the species' range. Data on the total weight of 
Atlantic and shortnose sturgeon harvested were collected by each state 
starting in 1880, and in the late 1800s commercial fisheries were 
landing upwards of 6,800,000 lbs (3,084 kg) of sturgeon annually 
(Murawski and Pacheco, 1977). By 1905, only 15 years later, this number 
had dropped to 20,000 lbs (9,071 kg). The population sizes were then 
further reduced by overfishing in the 1900s, when the landings 
drastically fell to a total of 215 lbs (98 kg) in 1990 (Stein et al., 
2004b). The total landings recorded include shortnose sturgeon as well 
as Atlantic sturgeon; however, the harvest is thought to have been 
primarily Atlantic sturgeon due to the large mesh-size nets commonly 
used at that time. A complete moratorium on possession of Atlantic 
sturgeon has been implemented in both state and Federal waters since 
1998 to eliminate the threat of directed catch and incentives to retain 
Atlantic sturgeon bycatch. However, Atlantic sturgeon are taken as 
bycatch in various commercial fisheries along the entire U.S. Atlantic 
Coast within inland, coastal, and Federal waters. While Atlantic 
sturgeon caught incidentally can no longer be legally landed, bycatch 
may still be a threat if fish are injured or killed in the act of being 
caught.
    Based on their life history, Atlantic sturgeon are more sensitive 
to fishing mortality than other coastal fish species. They are a long-
lived species, have an older age at full maturity, have lower maximum 
fecundity values, with 50 percent of the lifetime egg production for 
Atlantic sturgeon occurring later in life (Boreman, 1997). Boreman 
(1997) looked at the relationship between fishing mortality (F) and the 
corresponding percentage of the maximum lifetime egg production of an 
age 1 female. The F<INF>50</INF> is the fishing rate at which a cohort 
produces 50 percent of the eggs that it would produce with no fishing 
effort. Boreman calculated a sustainable fishing (bycatch) mortality 
rate of 5 percent per year for adult Atlantic sturgeon based on the 
F<INF>50</INF>. While many fishery models use a less conservative 
target fishing level of F<INF>30</INF> or F<INF>20</INF>, the more 
conservative choice of F<INF>50</INF> for Atlantic sturgeon is 
justified by their late age at maturity and because they are periodic 
spawners (Boreman, 1997).
    We currently do not have all the data necessary to determine 
whether the percentage of Atlantic sturgeon populations lost annually 
due to bycatch mortality exceeds a sustainable rate of 5 percent per 
year suggested by Boreman (1997) as we do not have abundance estimates 
for the Carolina and South Atlantic DPSs and bycatch remains highly 
underreported. However, bycatch is occurring throughout the range of 
the Carolina and South Atlantic DPSs of Atlantic sturgeon, and the 
bycatch mortality associated with the dominant fishing gear in the 
Southeast is relatively high. All the spawning populations in the 
Southeast Region are quite small, which means that the loss of a small 
number of fish to bycatch mortality could exceed the sustainable rate 
of 5 percent per year. Overutilization of Atlantic sturgeon through 
commercial bycatch is presently a threat to the Carolina and South 
Atlantic DPSs, and we believe it is contributing to their endangered 
status.
    Mortality rates of Atlantic sturgeon taken as bycatch in various 
types of fishing gear range between 0 and 51 percent, with the greatest 
mortality occurring in sturgeon caught by sink gillnets (Stein et al., 
2004b; ASMFC, 2007). The ASMFC Sturgeon Technical Committee (TC) 
determined that bycatch losses principally occur in sink gillnet 
fisheries, though there may be losses in the trawl fisheries, as well. 
Atlantic sturgeon are particularly vulnerable to sink gillnets due to 
their demersal nature (tendency to be at the bottom of the water 
column). If the nets are not tended often enough, it can be detrimental 
to the sturgeon, resulting in suffocation because their operculum or 
gills can be held closed by the net. Using the NMFS ocean observer 
dataset, the NEFSC estimated that bycatch mortality of sturgeon 
captured in sink gillnets between 2001 and 2006 was 13.8 percent 
(ASMFC, 2007). The ASMFC Sturgeon TC notes that any estimate of bycatch 
from the NMFS ocean observer dataset will be an underestimate because 
bycatch is under-reported in state waters and no observer coverage 
exists in the South Atlantic (North Carolina to Florida) Federal 
waters. In addition, bycatch mortality estimates do not account for 
post-capture mortality. The 13.8 percent mortality rate for sink 
gillnets estimated by the NEFSC may further underestimate the mortality 
rate in sink gillnets in the Carolina and South Atlantic DPSs because 
bycatch survival is greater in colder water temperatures of the north 
compared to warmer southern waters occupied by these DPSs (ASSRT, 
2007). Mortality of Atlantic sturgeon captured by trawls seems to be 
low, with most surveys reporting 0 percent mortality. However, these 
studies do not include post-capture mortality, and studies of mortality 
from trawl fisheries conducted in the south, where tow times are longer 
and water temperatures are higher, are very limited.
    Sink gillnets and trawls are used throughout riverine, estuarine, 
and marine waters in the range of the Carolina DPS to target a wide 
array of finfish and shellfish. Data on Atlantic sturgeon bycatch in 
Albemarle and Pamlico Sound commercial fisheries come from three 
sources: (1) NCDMF independent gillnet surveys (IGNS) that were 
initially designed to monitor striped bass; (2) the NCDMF Observer 
Program; and (3) the NC Sea Grant Fishery Resource Grant project that 
examined sturgeon bycatch in the flounder fishery (White and Armstrong, 
2000). The Albemarle and Pamlico IGNS used sink and drift gillnets, 
similar to those used by the shad/herring and the flounder fisheries. 
Only a few fish have been captured in the Pamlico Sound gillnet survey 
since 2000, although 842 Atlantic sturgeon were captured in the 
Albemarle Sound between 1990 and 2005. The NCDMF Observer Program 
sampled both the Albemarle and Pamlico Sound monthly from April 2004 to 
December 2005. Thirty Atlantic sturgeon were observed in Albemarle 
Sound, and 12 Atlantic sturgeon were observed in Pamlico Sound. 
Overall, five observed mortalities (12 percent of captures) occurred in 
June 2004 and April, August, January, and March 2005. No overall 
bycatch estimates have been extrapolated from these observer data. 
Commercial fishermen in Albemarle and Pamlico Sound and Cape Fear River 
reported catches of zero to two sturgeon per fishery per year. However, 
White and Armstrong (2000) reported that sturgeon bycatch in flounder 
gillnets fished from 1998 to 2000 by a single fishermen in the 
Albemarle Sound flounder fishery included the capture of 131 Atlantic 
sturgeon. Of the 131 Atlantic sturgeon captured, no mortalities were 
reported, although four individuals were noted as having minor 
injuries. These data indicate that underreporting of sturgeon bycatch 
is occurring in this area.

[[Page 61922]]

    A sink gillnet survey conducted in the Cape Fear River by UNCW 
personnel noted that 25 percent of sturgeon intercepted (22 of 88 
caught) were killed. The gillnets were set one day, checked the second, 
and retrieved on the third. The greatest mortality occurred during 
periods of highest water temperature (Moser et al., 1998). This survey 
was continued by the NCDMF, and it has reported mortality rates of 37 
percent overall. Similar to earlier findings, mortality was greatest 
during the summer months (June through August), averaging 49 percent 
(34 of 69 sturgeon died) (ASSRT, 2007). This study has been 
discontinued due to lack of funding. There are no estimates of bycatch 
in fishery dependent surveys.
    Winyah Bay is currently fished for American shad (Alosa 
sapidissima) using both sink and drift gillnets. This fishery has an 
estimated bycatch of 158 Atlantic sturgeon per year, of which 16 
percent (25 fish) die and another 20 percent are injured to some 
degree, although this estimate is dated (Collins et al., 1996). Shad 
fishers also operate within the rivers, but neither fishing effort nor 
average numbers of Atlantic sturgeon encountered are known. Poaching of 
adult Atlantic sturgeon has been reported from the Winyah Bay area in 
recent years. Carcasses of large females have been found with the 
ovaries (caviar) removed.
    The mouth of the Santee River, just south of Winyah Bay, has the 
largest shad landings in the Southeast (ASSRT, 2007), likely resulting 
in mortality and injury of sturgeon similar to that in the Winyah Bay 
shad fishery. Upriver bycatch levels are unknown. The Cooper River also 
has an active hook and line shad fishery because gillnets are 
restricted (ASSRT, 2007).
    The two largest commercial fisheries likely to capture Atlantic 
sturgeon from the South Atlantic DPS in the state waters of South 
Carolina and Georgia are the American shad gillnet and shrimp trawl 
fisheries. Studies in Georgia on commercial gillnet fisheries for 
American shad showed that they accounted for 52 percent of Atlantic 
sturgeon bycatch and the shrimp trawl fisheries accounted for 39 
percent (Collins et al., 1996). The American shad fisheries use sink 
gillnets and drift gillnets. Collins et al. (1996) documented a 16 
percent capture-induced mortality rate for sturgeon in the American 
shad fishery.
    There was a directed commercial fishery for Atlantic sturgeon in 
the ACE Basin prior to the 1985 fishery closure. The commercial 
sturgeon fishery operated in the lower and middle portions of both the 
Combahee and Edisto rivers. Commercial shad fisheries captured some 
juvenile Atlantic sturgeon, but most fishermen operate upriver from the 
areas of greatest abundance during that time of year. The shrimp trawl 
fishery in St. Helena Sound also captures juveniles, as evident from 
tag returns (ASSRT, 2007).
    Although a few commercial sturgeon fishers apparently operated in 
the Port Royal river system prior to 1985, the landing of only one 
Atlantic sturgeon has been recorded (Smith and Dingley, 1984). Little, 
if any, shad fishing takes place in this system. It is not known 
whether there is any significant bycatch in the shrimp trawl fishery in 
this area.
    During 1989 to 1991, the commercial shad gillnet fishery's bycatch 
in the Savannah River included more endangered shortnose sturgeon than 
juvenile Atlantic sturgeon. Collins et al. (1996) reported that two 
commercial fishermen collected 14 Atlantic and 189 shortnose sturgeon 
over the period of 1990 to 1992. It appears that abundance within the 
Savannah River is extremely low, as evidenced from low bycatch and 
reported captures over the last 15 years. Thus, bycatch may be a more 
serious impact if abundance is low and fishing effort is high.
    Bycatch in the shad fishery in the Ogeechee River is a heightened 
concern because evidence suggests that this Atlantic sturgeon 
population is stressed and that complete recruitment failure has 
occurred in some years (ASSRT, 2007). Bycatch mortality in the 
estuarine and lower river shad fishery is suspected to be high, but no 
estimates of take are available (ASSRT, 2007).
    Estimated annual total bycatch of Atlantic and shortnose sturgeon 
in the shad gillnet fishery in the tidal portion of the Altamaha River 
during 1982 and 1983 averaged 372 sturgeon (Collins et al., 1996). 
Percent mortality was not determined. During a study conducted between 
1986 and 1992 in the Altamaha River, 97 of 1,534 tagged juvenile 
Atlantic sturgeon were recaptured primarily by shad gillnets (52 
percent) and shrimp trawls (39 percent) (Collins et al., 1996). 
Juvenile Atlantic sturgeon from the Altamaha are relatively abundant in 
comparison to other rivers in the region, so a large percentage of the 
individuals in winter mixed-stock aggregations on the shelf are likely 
from this river. Most sturgeon occurring as shrimp trawl bycatch are 
from mixed-stock aggregations. Using the percentages of Atlantic and 
shortnose sturgeon from the 1986 to 1992 Altamaha catch data and 
applying them to the 1982 and 1983 total estimated sturgeon bycatch, it 
is expected that 89 percent (331 fish) of the catch consisted of 
Atlantic sturgeon (ASSRT, 2007). Also, assuming a 10 percent bycatch 
mortality rate for Atlantic sturgeon from drift nets (Stein et al., 
2004b), the dominant gear used in the shad gillnet fishery, it is 
estimated that 33 Atlantic sturgeon would die each year from the 
fishery.
    Shad fishing effort is low in the Satilla River due to an 
apparently depleted shad population. However, because the Atlantic 
sturgeon population is depleted and highly stressed, any bycatch 
mortality could have an impact on the population (ASSRT, 2007).
    The SRT concluded that bycatch presents a moderate threat to the 
Carolina DPS, while the threat of bycatch to the South Atlantic DPS was 
characterized as moderately low in each of the populations, with the 
exception of the Altamaha, where bycatch was deemed to pose a moderate 
threat. Overutilization of Atlantic sturgeon from directed fishing 
caused initial severe declines in Atlantic sturgeon populations in the 
southeast, from which they have never rebounded. Further, we believe 
continued overutilization of Atlantic sturgeon from bycatch in 
commercial fisheries is an ongoing impact to the Carolina and South 
Atlantic DPSs that is contributing to their endangered status. Atlantic 
sturgeon are particularly vulnerable to being caught in sink gillnets; 
therefore, fisheries using this type of gear account for a high 
percentage of Atlantic sturgeon bycatch. Little data exist on bycatch 
in the Southeast, and high levels of bycatch underreporting are 
suspected. Further, total population abundances for the Carolina and 
South Atlantic DPSs are not available; therefore, it is not possible to 
calculate the percentages of the Carolina and South Atlantic DPSs 
subject to bycatch mortality based on the available bycatch mortality 
rates for individual fisheries. However, fisheries known to 
incidentally catch Atlantic sturgeon occur throughout the marine range 
of the species and in some riverine waters as well. Because Atlantic 
sturgeon mix extensively in marine waters and may access multiple river 
systems, they are subject to being caught in multiple fisheries 
throughout their range. Atlantic sturgeon taken as bycatch may suffer 
immediate mortality. In addition, stress or injury to Atlantic sturgeon 
taken as bycatch but released alive may result in increased 
susceptibility to other threats, such as poor water quality (e.g., 
exposure to toxins and low DO). This may result in reduced ability to 
perform major life functions, such as foraging and spawning, or even 
post-

[[Page 61923]]

capture mortality. Several of the systems in the South Atlantic DPS 
(e.g., the Ogeechee and the Satilla) are stressed to the degree that 
any level of bycatch could have an adverse impact on the status of the 
DPS (ASSRT, 2007).

C. Disease or Predation

    Very little is known about natural predators of Atlantic sturgeon. 
The presence of bony scutes is likely an effective adaptation for 
minimizing predation of sturgeon greater than 25 mm (Gadomski and 
Parsley, 2005). Gadomski and Parsley (2005) have shown that catfish and 
other species do prey on juvenile sturgeon, and concerns have been 
raised regarding the potential for increased predation on juvenile 
Atlantic sturgeon by introduced flathead catfish (Brown et al., 2005). 
Atlantic sturgeon populations are persisting in the Cape Fear River, 
North Carolina, and Altamaha River, Georgia, where flatheads have been 
present for many years, at least in the absence of any directed 
fisheries for Atlantic sturgeon. Thus, further research is warranted to 
determine at what level, if any, flatheads and other exotic species 
prey upon juvenile Atlantic sturgeon and to what extent such predation 
is affecting the sturgeon populations.
    While some disease organisms have been identified from wild 
Atlantic sturgeon, they are unlikely to threaten the survival of the 
wild populations. Disease organisms commonly occur among wild fish 
populations, but under favorable environmental conditions, these 
organisms are not expected to cause population-threatening epidemics. 
There is concern that non-indigenous sturgeon pathogens could be 
introduced, most likely through aquaculture operations. Fungal 
infections and various types of bacteria have been noted to have 
various effects on hatchery Atlantic sturgeon. Due to this threat of 
impacts to wild populations, the ASMFC recommends requiring any 
sturgeon aquaculture operation to be certified as disease-free, thereby 
reducing the risk of the spread of disease from hatchery origin fish. 
The aquarium industry is another possible source for transfer of non-
indigenous pathogens or non-indigenous species from one geographic area 
to another, primarily through release of aquaria fish into public 
waters. With millions of aquaria fish sold to individuals annually, it 
is unlikely that such activity could ever be effectively regulated. 
Definitive evidence that aquaria fish could be blamed for transmitting 
a non-indigenous pathogen to wild fish (sturgeon) populations would be 
very difficult to collect (ASSRT, 2007).
    In their extinction risk analysis, the SRT ranked the threat from 
disease and predation as a low risk. While information on the impacts 
of disease and predation on Atlantic sturgeon is limited, there is 
nothing to indicate that either of these factors is currently having 
any measurable adverse impact on Atlantic sturgeon. Therefore, we 
concur with the SRT, and we conclude that disease and predation are not 
contributing to the endangered status of either the Carolina or the 
South Atlantic DPS.

D. Inadequacy of Existing Regulatory Mechanisms

    As a wide-ranging anadromous species, Atlantic sturgeon are subject 
to numerous Federal (U.S. and Canadian), state and provincial, and 
inter-jurisdictional laws, regulations, and agency activities. These 
regulatory mechanisms are described in detail in the status review 
report (see Section 3.4). We believe that the inadequacy of regulatory 
mechanisms to control bycatch and the modification and curtailment of 
Atlantic sturgeon habitat is contributing to the endangered status of 
the Carolina and South Atlantic DPSs.
    Current regulatory mechanisms have effectively removed threats from 
legal, directed harvest in the United States, as well as incentives for 
retention of bycatch. The ASMFC was given management authority in 1993 
under the Atlantic Coastal Fisheries Cooperative Management Act 
(ACFCMA) (16 U.S.C. 5101-5108), and it manages Atlantic sturgeon 
through an interstate fisheries management plan (IFMP). The moratorium 
prohibiting directed catch of Atlantic sturgeon was developed as an 
Amendment to the IFMP. The ACFCMA, authorized under the terms of the 
ASMFC Compact, as amended (Pub. L. 103-206), provides the Secretary of 
Commerce with the authority to implement regulations that are 
compatible to ASMFC FMPs in the Exclusive Economic Zone (EEZ) in the 
absence of an approved Magnuson-Stevens FMP. In 1999, it was under this 
authority that a similar moratorium was implemented for Atlantic 
sturgeon in Federal waters. The Amendment includes a stock rebuilding 
target of at least 20 protected mature age classes in each spawning 
stock, which is to be achieved by imposing a harvest moratorium. The 
Amendment requires states to monitor, assess, and annually report 
Atlantic sturgeon bycatch and mortality in other fisheries. The 
Amendment also requires that states annually report habitat protection 
and enhancement efforts. Finally, the Amendment states that each 
jurisdiction with a reproducing population should conduct juvenile 
assessment surveys (including CPUE estimates, tag and release programs, 
and age analysis), and states with rivers that lack a reproducing 
sturgeon population(s) but support nursery habitat for migrating 
juveniles should also conduct sampling.
    While the ASMFC and NMFS have made significant strides in reducing 
the threats from direct harvest and retention of bycatch, those threats 
have not been eliminated, and continued bycatch of Atlantic sturgeon is 
contributing to the endangered status of the Carolina and South 
Atlantic DPSs. Although the FMP contains requirements for reporting 
bycatch, fishery managers, such as the ASMFC Atlantic Sturgeon 
Management Board, widely accept that Atlantic sturgeon bycatch is 
underreported or not reported at all based on research and anecdotal 
evidence (ASMFC, 2005; ASSRT, 2007; White and Armstrong, 2000). 
Abundance estimates are available only for two river systems (the 
Hudson and the Altamaha) even though the FMP states that each 
jurisdiction with a reproducing population should conduct juvenile 
assessment surveys (including CPUE estimates, tag and release programs, 
and age analysis). While the aforementioned mechanisms have addressed 
impacts to Atlantic sturgeon through directed fisheries, there are 
currently no mechanisms in place to address the significant impacts and 
risks posed to Atlantic sturgeon from commercial bycatch.
    State and Federal agencies are actively employing a variety of 
legal authorities to implement proactive restoration activities for 
this species, and coordination of these efforts is being furnished 
through the ASMFC. Due to existing state and Federal laws, water 
quality and other habitat conditions have improved in many riverine 
habitats, although many systems still have DO and toxic contaminants 
issues, and habitat quality and quantity continue to be affected by 
dams, dredging, and/or altering natural flow conditions.
    Though statutory and regulatory mechanisms exist that authorize 
reducing the impact of dams on riverine and anadromous species, such as 
Atlantic sturgeon, and their habitat, these mechanisms have proven 
inadequate for preventing dams from blocking access to habitat upstream 
and degrading habitat downstream. Hydropower dams are regulated by the 
FERC. The Federal Power Act (FPA), originally enacted in 1920, provides 
for cooperation between FERC and other Federal agencies, including 
resource

[[Page 61924]]

agencies, in licensing and relicensing power projects. The FPA 
authorizes NMFS to recommend hydropower license conditions to protect, 
mitigate damages to, and enhance anadromous fish, including related 
habitat. The FPA also provides authority for NMFS to issue mandatory 
fishway prescriptions. FERC licenses have a term of 30 to 50 years, so 
NMFS' involvement in the licensing process to ensure the protection and 
accessibility of upstream habitat, and to improve habitat degraded by 
changes in water flow and quality from dam operations, only occurs 
twice or thrice a century. The FPA does not apply to non-hydropower 
dams, such as those operated by the Army Corps of Engineers for 
navigation purposes. Even where fish passage currently exists, evidence 
is rare that they effectively pass sturgeon, including Atlantic 
sturgeon. As mentioned in previous sections, dams in the Southeast are 
currently blocking over 60 percent of the habitat in three rivers with 
historical and/or current spawning Atlantic sturgeon populations (the 
Cape Fear River and Santee-Cooper System in the Carolina DPS and the 
St. Johns River in the South Atlantic DPS). In addition to the loss of 
important spawning and juvenile developmental habitat upstream, dam 
operations reduce the quality of the remaining habitat downstream by 
affecting water quality parameters (such as depth, temperature, 
velocity, and DO) that are important to Atlantic sturgeon. Therefore, 
the inadequacy of regulatory mechanisms to ensure safe and effective 
upstream and downstream passage to Atlantic sturgeon and prevent 
degradation of habitat downstream from dam operations in riverine 
habitat is contributing to the endangered status of the Carolina and 
South Atlantic DPSs.
    Inadequacies in the regulation of water allocation also impact the 
South Atlantic DPS. Data concerning consumptive water use in this 
region are, at best, very limited. While extensive data exist 
concerning permitted water withdrawals, there is little information 
concerning actual withdrawals and virtually no information concerning 
water discharges. This is particularly the case for municipal and 
industrial uses because water use permits are not required for 
withdrawals less than 100,000 gpd (379 m\3\pd) (Cummings et al., 2003) 
and discharge permits are not required unless discharge contains 
selected toxic materials. Agricultural water use permits are not 
quantified in any meaningful way, thus neither water withdrawals nor 
return flows are measured (Fisher et al., 2003). While several other 
states have similar permitting thresholds, the majority require permits 
for water withdrawals less than 100,000 gpd (379 m\3\pd) and some 
require a permit for any water withdrawal. The State of Georgia allows 
access to water in amounts required to satisfy the household needs of 
more than 300 households without a permit (Cummings et al., 2003).
    Even the most fundamental requisites for basin water planning--data 
for historical, unimpaired flows in the coastal regions' rivers--simply 
do not exist (Fisher et al., 2003). There are 125 river gauges in the 
region's 7 river basins. However, 72 of these gauges are inactive, and 
28 of the remaining 53 gauges do not provide consistent flow 
information. Moreover, historical data from many gauges have gaps, 
reflecting periods (sometimes extending over months) during which the 
gauge was inoperative. Also, there are extensive discharge areas 
between the last gauge in each river system and the point at which the 
river discharges into the ocean--thus, there are potentially large 
water supplies about which absolutely nothing is known (Fisher et al., 
2003).
    Water quality continues to be a problem, even with existing 
controls on some pollution sources. Data required to evaluate water 
allocation issues are either very weak, in terms of determining the 
precise amounts of water currently being used, or non-existent, in 
terms of our knowledge of water supplies available for use under 
historical hydrologic conditions in the region. Current regulatory 
regimes are not necessarily effective in controlling water allocation 
(e.g., no permit requirements for water withdrawals under 100,000 gpd 
(379 m\3\pd) in Georgia and no restrictions on interbasin water 
transfers in South Carolina).
    In their extinction risk analysis, the SRT ranked the threat from 
the inadequacy of regulatory mechanisms as moderately low to moderate. 
While some of the threats to the Carolina and South Atlantic DPSs have 
been ameliorated or reduced through the existing regulatory mechanisms, 
such as the moratorium on directed fisheries for Atlantic sturgeon, 
bycatch is currently not being addressed through existing mechanisms. 
Further, water quality continues to be a problem even with existing 
controls on some pollution sources and water withdrawal, and dams 
continue to curtail and modify habitat, even with the Federal Power 
Act.

E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence

    The SRT considered several manmade factors that may affect Atlantic 
sturgeon, including impingement and entrainment, ship strikes, and 
artificial propagation. The vast withdrawal of water from rivers that 
support Atlantic sturgeon populations was considered to pose a threat 
of impingement and entrainment; however, data are lacking to determine 
the overall impact of this threat on sturgeon populations, as impacts 
are dependent on a variety of factors (e.g., the species, time of year, 
location of the intake structure, and strength of the intake current). 
Multiple suspected boat/ship strikes have been reported in several 
rivers. A large number of the mortalities observed in these rivers from 
potential ship strikes have been of large adult Atlantic sturgeon. 
Lastly, potential artificial propagation of Atlantic sturgeon was also 
a concern to SRT members, as both stock enhancement programs and 
commercial aquaculture can have negative impacts on a recovering 
population (e.g., fish disease, escapement, outbreeding depression). In 
order to circumvent these potential threats, stock enhancement programs 
follow culture and stocking protocols approved by the ASMFC. Commercial 
aquaculture facilities are expected to maintain disease-free facilities 
and have safeguards in place to prevent escapement of sturgeon into the 
wild. While in at least one instance cultured Atlantic sturgeon have 
gone unaccounted for from a commercial aquaculture facility in Florida, 
this is not considered to be a significant threat, as this was a rare 
event. Mechanisms are in place at all facilities to prevent escapement 
of sturgeon; facilities are all land based, and most are not located in 
close proximity to any Atlantic sturgeon rivers.
    Along the range of Atlantic sturgeon from the Carolina and South 
Atlantic DPSs, most, if not all, populations are at risk of possible 
entrainment or impingement in water withdrawal intakes for commercial 
uses, municipal water supply facilities, and agricultural irrigation 
intakes. In North Carolina, over two billion gallons of water per day 
were withdrawn from the Cape Fear, Neuse, Tar, and Roanoke rivers in 
1999 by agriculture and non-agricultural industries (NCDENR, 2006). 
Currently, there are only three surveys that have shown the direct 
impacts of water withdrawal on Atlantic sturgeon: (1) Hudson River 
Utility Surveys, (2) Delaware River Salem Power Plant

[[Page 61925]]

survey, and (3) Edwin I. Hatch Nuclear Power Plant (HNP) survey. The 
Edwin I. Hatch Nuclear power plant is located 11 miles north of Baxley, 
Georgia. The HNP uses a closed-loop system for main condenser cooling 
that withdraws from, and discharges to, the Altamaha River. Pre-
operational drift surveys were conducted and only two Acipenser sp. 
larvae were collected. Entrainment samples at HNP were collected for 
the years 1975, 1976, and 1980, and no Acipenser sp. were observed in 
the samples (Sumner, 2004). Though most rivers have multiple intake 
structures which remove millions of gallons a day during the spring and 
summer months, it is believed that the migratory behavior of larval 
sturgeon allows them to avoid intake structures, since migration is 
active and occurs in deep water (Kynard and Horgan, 2002). Effluent 
from these facilities can also affect populations, as some facilities 
release heated water that acts as a thermal refuge during the winter 
months, but drastic changes in water temperature have the potential to 
cause mortality.
    Locations that support large ports and have relatively narrow 
waterways are more prone to ship strikes (e.g., Delaware, James, and 
Cape Fear rivers). One ship strike per 5 years is reported for the Cape 
Fear River within the Carolina DPS. Ship strikes have not been 
documented in any of the rivers within the South Atlantic DPS. While it 
is possible that ship strikes may have occurred that have gone 
unreported or unobserved, the lack of large ship traffic on narrow 
waterways within the range of the DPS may limit potential interactions.
    Artificial propagation of Atlantic sturgeon for use in restoration 
of extirpated populations or recovery of severely depleted wild 
populations has the potential to be both a threat to the species and a 
tool for recovery. Within the range of the Carolina DPS, several 
attempts were made by Smith et al. (1980 and 1981) to hormonally-induce 
spawning and culture Atlantic sturgeon captured in the Atlantic Ocean 
off the Winyah Bay jetties. Fry were hatched in each instance, but 
lived less than a year. As a result of successful spawning of Hudson 
River Atlantic sturgeon from 1993 to 1998, USFWS' Northeast Fisheries 
Center (NEFC) is currently rearing five year-classes of domestic fish. 
These fish could potentially be used as broodstock for aquaculture 
operations and stock enhancement, provided that there is no risk to 
wild fish. Aquaculturists along the East Coast, including some in North 
Carolina and South Carolina, have contacted the NEFC and expressed 
interest in initiating commercial production of Atlantic sturgeon. In 
2006, La Paz Aquaculture Group was approved by North Carolina state 
resource agencies and ASMFC to produce Atlantic sturgeon for flesh and 
caviar sales. However, their first year of production was halted 
because remnant storms from Hurricane Katrina destroyed their fry 
stock. In August 2006, ASMFC reevaluated the La Paz permit, and voted 
to draft an addendum to allow La Paz to acquire Atlantic sturgeon from 
multiple Canadian aquaculture companies (previously restricted to one 
company), allowing them to resume Atlantic sturgeon culture. Resource 
managers who reviewed the permit found the La Paz facility to pose 
little threat to Atlantic sturgeon or shortnose populations due to the 
facility location (far inland), use of a recirculating system, and land 
application of any discharge (ASSRT, 2007).
    In the range of the South Atlantic DPS, artificial propagation has 
been attempted for the purposes of both restoration and commercial 
profit. The St. Marys Fish Restoration Committee (SMFRC) is working 
with Florida and Georgia to reestablish Atlantic sturgeon in the St. 
Marys River. Efforts are currently underway to refine restoration 
approaches within the system. Phase 1 of the restoration plan includes 
a population and habitat assessment. Field investigations are being 
funded through ESA Section 6 and coordinated through Georgia DNR. The 
State of Florida has been involved in fish sampling and will continue 
to explore and refine sturgeon sampling strategies. Aquatic habitat and 
water quality surveillance work will continue to be accomplished by the 
St. Johns River Water Management District, the Environmental Protection 
Agency, Florida Department of Environmental Protection, USFWS, TNC, and 
the St. Marys River Management Committee. Phase 2 of the plan would 
include experimental transplanting of Atlantic sturgeon to assess 
environmental factors, habitat use at different life-stages, 
contaminants, migration-homing, etc. Upon approval from the ASMFC, the 
SMFRC transferred 12 Atlantic sturgeon from the Altamaha River in 
Georgia to the Bears Bluff National Fish Hatchery in South Carolina. 
The SMFRC hopes to develop and refine captive propagation techniques 
for predictable spawning and provide fish to approved researchers.
    Aquaculturists in South Carolina and Florida have also contacted 
the NEFC and expressed interest in initiating commercial production of 
Atlantic sturgeon through use of the Hudson River broodstock. In 2001, 
the Canadian Caviar Company shipped 18,000 Atlantic sturgeon sac fry to 
the University of Florida. These fry were used to conduct early larval 
and feeding trials. Survivors of these experiments were transferred to 
four aquacultural businesses: (1) Evan's Fish Farm in Pierson, Florida; 
(2) Watts Aquatics in Tampa, Florida; (3) Hi-Tech Fisheries of Florida 
in Lakeland, Florida; and (4) Rokaviar in Homestead, Florida. Evan's 
Fish Farm experienced a catastrophic systems failure in 2004 and 
currently has five Atlantic sturgeon on its premises. The farm intends 
to use these remaining sturgeon as broodstock and would like to acquire 
more Atlantic sturgeon. Watts Aquatics went out of business, and the 
status of the Atlantic sturgeon this farm received is unknown. Hi-Tech 
Fisheries of Florida currently has around 300 Atlantic sturgeon which 
have been transferred to a quarry, and the company is in the process of 
evaluating stock size and health condition. Rokaviar originally 
received 100 sturgeon, but due to a malfunction with the life support 
systems, the company now holds only 20 Atlantic sturgeon. All of these 
facilities are periodically screened for disease by a University of 
Florida Institute for Food and Agricultural Science (IFAS) 
veterinarian. None have reported diseases. All facilities are above the 
100-year flood plain and have zero discharge, where tank culture or 
quarry culture is utilized (Roberts and Huff, 2004). These facilities 
may sell meat, fingerlings, and caviar in accordance with state, 
Federal, and international laws.
    The SRT ranked the threats from impingement/entrainment, ship 
strikes, and artificial propagation as low for both DPSs, with the 
exception of the threat from ship strikes as moderately low for the 
Carolina DPS. We concur with these rankings and conclude that none of 
these threats are contributing to the endangered status of the DPS.

Current Protective Efforts

    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into account those 
efforts, if any, being made by any State or foreign nation to protect 
the species. In judging the efficacy of existing protective efforts, we 
rely on the Services' joint ``Policy for Evaluation of Conservation 
Efforts When Making Listing Decisions'' (``PECE;'' 68 FR 15100; March 
28, 2003). The PECE is designed to guide determinations on whether any 
conservation efforts that have been recently adopted or implemented, 
but not yet proven to be

[[Page 61926]]

successful, will result in recovering the species to the point at which 
listing is not warranted or contribute to forming a basis for listing a 
species as threatened rather than endangered. The purpose of the PECE 
is to ensure consistent and adequate evaluation of future or recently 
implemented conservation efforts identified in conservation agreements, 
conservation plans, management plans, and similar documents when making 
listing decisions. The PECE provides direction for the consideration of 
such conservation efforts that have not yet been implemented, or have 
been implemented but have not yet demonstrated effectiveness. The 
policy is expected to facilitate the development by states and other 
entities of conservation efforts that sufficiently improve a species' 
status so as to make listing the species as threatened or endangered 
unnecessary.
    The PECE established two basic criteria: (1) The certainty that the 
conservation efforts will be implemented, and (2) the certainty that 
the efforts will be effective. Satisfaction of the criteria for 
implementation and effectiveness establishes a given protective effort 
as a candidate for consideration, but does not mean that an effort will 
ultimately change the risk assessment for the species. Overall, the 
PECE analysis ascertains whether the formalized conservation effort 
improves the status of the species at the time a listing determination 
is made.
    We evaluated the current conservation efforts underway to protect 
and recover Atlantic sturgeon in making our listing determination. We 
determined that only the following conservation efforts warrant 
consideration under the PECE for the Carolina and South Atlantic DPSs: 
the 1998 ASMFC FMP and the proposal by the SMFRC to restore Atlantic 
sturgeon to the St. Marys River.
    The 1998 Amendment to the ASMFC Atlantic Sturgeon FMP strengthens 
conservation efforts by formalizing the closure of the directed 
fishery, and by banning possession of bycatch, eliminating any legal 
incentive to retain Atlantic sturgeon. However, bycatch is known to 
occur in several fisheries (ASMFC, 2007) and it is widely accepted that 
bycatch is underreported. With respect to its effectiveness, contrary 
to information available in 1998 when the Amendment was approved, 
Atlantic sturgeon bycatch mortality is a major stressor affecting the 
recovery of Atlantic sturgeon, despite actions taken by the states and 
NMFS to prohibit directed fishing and retention of Atlantic sturgeon. 
Therefore, there is considerable uncertainty that the Atlantic Sturgeon 
FMP will be effective in meeting its conservation goals. In addition, 
though the 1998 Amendment contains requirements for population surveys, 
it is highly uncertain these will be implemented, as there are limited 
resources for assessing current abundance of spawning females for each 
of the DPSs and to date, abundance estimates have only been completed 
for one river within the range of the two DPSs considered here. For 
these reasons, there is no certainty of implementation and 
effectiveness of the intended ASMFC FMP conservation effort for the 
Carolina and South Atlantic DPSs of Atlantic sturgeon.
    The SMFRC is working with Florida and Georgia with the intention of 
reestablishing Atlantic sturgeon in the St. Marys River. Efforts are 
currently underway to refine restoration approaches within the system. 
As discussed in Section E, Phase 1 of the restoration plan includes a 
population and habitat assessment, and Phase 2 includes experimental 
transplanting of Atlantic sturgeon to assess environmental factors, 
habitat use at different life-stages, contaminants, migration-homing, 
etc. Atlantic sturgeon are believed to be extirpated in the St. Marys 
River. This conservation effort may increase our knowledge and 
understanding of Atlantic sturgeon status and habitat conditions in the 
St. Marys River, as well as provide methods for restoring a population 
there in the future. As previously discussed, artificial propagation of 
Atlantic sturgeon for use in restoration of extirpated populations or 
recovery of severely depleted wild populations has the potential to be 
both a threat to the species and a tool for recovery. Because it is in 
the earliest stages of planning, development, and authorization, the 
feasibility of any project or the potential degree of success for this 
effort is unknown. Therefore, the SMRFC efforts do not satisfy the PECE 
policy's standards for certainty of implementation or effectiveness.

Conclusion

Finding for the Carolina DPS

    The Carolina DPS is estimated to number less than 3 percent of its 
historical population size (ASSRT, 2007). Prior to 1890, Secor (2002) 
estimated there were between 7,000 and 10,000 adult females in North 
Carolina and 8,000 adult females in South Carolina. Currently, there 
are estimated to be less than 300 spawning adults (total of both sexes) 
in each of the major river systems occupied by the DPS, whose 
freshwater range occurs in the watersheds from the Roanoke River 
southward along the southern Virginia, North Carolina, and South 
Carolina coastal areas to the Cooper River. We have reviewed the status 
review report, as well as other available literature and information, 
and have consulted with scientists and fishery resource managers 
familiar with the Atlantic sturgeon in the Carolina DPS. After 
reviewing the best scientific and commercial information available, we 
find that the Atlantic sturgeon Carolina DPS is in danger of extinction 
throughout its range as a result of a combination of habitat 
curtailment and alteration, overutilization in commercial fisheries, 
and inadequacy of regulatory mechanisms in ameliorating these impacts 
and threats, and we propose to list it as endangered.

Finding for the South Atlantic DPS

    The South Atlantic DPS is estimated to number less than 6 percent 
of its historical population size (ASSRT, 2007), with all river 
populations except the Altamaha estimated to be less than 1 percent of 
historical abundance. Prior to 1890, Secor (2002) estimated there were 
8,000 adult spawning females in South Carolina and 11,000 adult 
spawning females in Georgia. Currently, there are an estimated 343 
spawning adults in the Altamaha and less than 300 spawning adults 
(total of both sexes) in each of the other major river systems occupied 
by the DPS, whose freshwater range occurs in the watersheds of the ACE 
Basin in South Carolina to the St. Johns River, Florida. We have 
reviewed the status review report, as well as other available 
literature and information, and have consulted with scientists and 
fishery resource managers familiar with the Atlantic sturgeon in the 
South Atlantic DPS. After reviewing the best scientific and commercial 
information available, we find that the Atlantic sturgeon South 
Atlantic DPS is in danger of extinction throughout its range as a 
result of a combination of habitat curtailment and alteration, 
overutilization in commercial fisheries, and inadequacy of regulatory 
mechanisms in ameliorating these impacts and threats, and we propose to 
list it as endangered.

Role of Peer Review

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum peer review standards, a transparent process for public 
disclosure of peer review planning, and opportunities for public 
participation. The OMB Bulletin, implemented under the Information

[[Page 61927]]

Quality Act (Pub. L. 106-554), is intended to enhance the quality and 
credibility of the Federal government's scientific information, and 
applies to influential or highly influential scientific information 
disseminated on or after June 16, 2005. To satisfy our requirements 
under the OMB Bulletin, the Atlantic sturgeon status review report was 
peer reviewed by six experts in the field, with their substantive 
comments incorporated in the final status review report.
    On July 1, 1994, the NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270). The intent of the peer review policy is 
to ensure that listings are based on the best scientific and commercial 
data available. Prior to a final listing, NMFS will solicit the expert 
opinions of three qualified specialists selected from the academic and 
scientific community, Federal and State agencies, and the private 
sector on listing recommendations to ensure the best biological and 
commercial information is being used in the decisionmaking process, as 
well as to ensure that reviews by recognized experts are incorporated 
into the review process of rulemakings developed in accordance with the 
requirements of the ESA.

Effects of Listing

    Conservation measures provided for species listed as endangered or 
threatened under the ESA include recovery actions (16 U.S.C. 1533(f)), 
critical habitat designations, Federal agency consultation requirements 
(16 U.S.C. 1536), and prohibitions on taking (16 U.S.C. 1538). 
Recognition of the species' plight through listing promotes 
conservation actions by Federal and state agencies, private groups, and 
individuals. Should the proposed listings be made final, a recovery 
program would be implemented, and critical habitat may be designated. 
Federal, state, and the private sectors will need to cooperate to 
conserve listed Atlantic sturgeon and the ecosystems upon which they 
depend.
    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) 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 ESA is no longer necessary. Section 4(a)(3)(a) 
of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent 
prudent and determinable, critical habitat be designated concurrently 
with the listing of a species. If we determine that it is prudent and 
determinable, we will publish a proposed designation of critical 
habitat for Atlantic sturgeon in a separate rule. Public input on 
features and areas that may meet the definition of critical habitat for 
the Carolina and South Atlantic DPSs is invited.

Identifying the DPS(s) Potentially Affected by an Action During Section 
7 Consultation

    The Carolina and South Atlantic DPSs are distinguished based on 
genetic data and spawning locations. However, extensive mixing of the 
populations occurs in coastal waters. Therefore, the distributions of 
the DPSs outside of natal waters generally overlap with one another, 
and with fish from Northeast river populations. This presents a 
challenge in conducting ESA section 7 consultations because fish from 
any DPS could potentially be affected by a proposed project. Project 
location alone will likely not inform the section 7 biologist as to 
which populations to consider in the analysis of a project's potential 
direct and indirect effects on Atlantic sturgeon and their habitat. 
This will be especially problematic for projects where take could occur 
because it is critical to know which Atlantic sturgeon population(s) to 
include in the jeopardy analysis. One conservative, but potentially 
cumbersome, method would be to analyze the total anticipated take from 
a proposed project as if all Atlantic sturgeon came from a single DPS 
and repeat the jeopardy analysis for each DPS the taken individuals 
could have come from. However, recently funded research may shed some 
light on the composition of mixed stocks of Atlantic sturgeon, relative 
to their rivers of origin, in locations along the East Coast. The 
specific purpose of the study is to evaluate the vulnerability to 
coastal bycatch of Hudson River Atlantic sturgeon, thought to be the 
largest stock contributing to coastal aggregations from the Bay of 
Fundy to Georgia. However, the mixed stock analysis will also allow 
NMFS to better estimate a project's effects on different components of 
a mixed stock of Atlantic sturgeon in coastal waters or estuaries other 
than where they were spawned. Results from the study are expected in 
February 2011. Genetic mixed stock analysis, such as proposed in this 
study, requires a high degree of resolution among stocks contributing 
to mixed aggregations and characterization of most potential 
contributory stocks. Fortunately, almost all extant populations, at 
least those with reasonable population sizes, have been characterized 
in previous genetic studies, though some additional populations will be 
characterized in this study. Genetic testing of mixed stocks will be 
conducted in eight coastal locales in both the Northeast and Southeast 
Regions. Coastal fisheries and sites were selected based on sample 
availabilities, bycatch concerns, and specific biological questions 
(i.e., real uncertainty as to stock origins of the coastal 
aggregation). We are specifically seeking public input on the mixing of 
fish from different DPSs in parts of their ranges, particularly in the 
marine environment.

Identification of Those Activities That Would Constitute a Violation of 
Section 9 of the ESA

    On July 1, 1994, we and USFWS published a policy to identify, to 
the maximum extent possible, those activities that would or would not 
constitute a violation of section 9 of the ESA (59 FR 34272; July 1, 
1994). The intent of this policy is to increase public awareness of the 
effect of this listing on proposed and ongoing activities within the 
species' range. We will identify, to the extent known at the time of 
the final rule, specific activities that will not be considered likely 
to result in violation of section 9, as well as activities that will be 
considered likely to result in violation. Activities that we believe 
could result in violation of section 9 prohibitions against ``take'' of 
the Atlantic sturgeon in the Carolina and South Atlantic DPSs include, 
but are not limited to, the following: (1) Bycatch associated with 
commercial and recreational fisheries; (2) poaching of individuals for 
meat or caviar; (3) marine vessel strikes; (4) destruction of riverine, 
estuarine, and marine habitat through such activities as agricultural 
and urban development, commercial activities, diversion of water for 
hydropower and public consumption, and dredge and fill operations; (5) 
impingement and entrainment in water control structures; (6) 
unauthorized collecting or handling of the species (permits to conduct 
these activities are available for purposes of scientific research or 
to enhance the propagation or survival of the DPSs); (7) releasing a 
captive Atlantic sturgeon into the wild; and (8) harming captive 
Atlantic

[[Page 61928]]

sturgeon by, among other things, injuring or killing them through 
veterinary care, research, or breeding activities outside the bounds of 
normal animal husbandry practices. We believe that, based on the best 
available information, the following actions will not result in a 
violation of section 9: (1) Possession of Atlantic sturgeon acquired 
lawfully by permit issued by NMFS pursuant to section 10 of the ESA, or 
by the terms of an incidental take statement in a biological opinion 
pursuant to section 7 of the ESA; (2) Federally approved projects that 
involve activities such as agriculture, managed fisheries, road 
construction, discharge of fill material, stream channelization, or 
diversion for which consultation under section 7 of the ESA has been 
completed, and when such activity is conducted in accordance with any 
terms and conditions given by NMFS in an incidental take statement in a 
biological opinion pursuant to section 7 of the ESA; (3) continued 
possession of live Atlantic sturgeon that were in captivity or in a 
controlled environment (e.g., in aquaria) at the time of this listing, 
so long as the prohibitions under an ESA section 9(a)(1) are not 
violated. If listed, NMFS will provide contact information for 
facilities to submit information on Atlantic sturgeon in their 
possession, to establish their claim of possession; and (4) provision 
of care for live Atlantic sturgeon that were in captivity at the time 
of this listing.
    Section 9(b)(1) of the ESA provides a narrow exemption for animals 
held in captivity at the time of listing: Those animals are not subject 
to the import/export prohibition or to protective regulations adopted 
by the Secretary, so long as the holding of the species in captivity, 
before and after listing, is not in the course of a commercial 
activity; however, 180 days after listing, there is a rebuttable 
presumption that the exemption does not apply. Thus, in order to apply 
this exemption, the burden of proof for confirming the status of 
animals held in captivity prior to listing lies with the holder. The 
section 9(b)(1) exemption for captive wildlife would not apply to any 
progeny of the captive animals that may be produced post-listing.

References

    A complete list of the references used in this proposed rule is 
available upon request (see ADDRESSES).

Classification

National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the 
information that may be considered when assessing species for listing. 
Based on this limitation of criteria for a listing decision and the 
opinion in Pacific Legal Foundation v. Andrus, 675 F. 2d 825 (6th Cir. 
1981), NMFS has concluded that ESA listing actions are not subject to 
the environmental assessment requirements of the National Environmental 
Policy Act (NEPA). (See NOAA Administrative Order 216-6.)

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

    As noted in the Conference Report on the 1982 amendments to the 
ESA, economic impacts cannot be considered when assessing the status of 
a species. Therefore, the economic analysis requirements of the 
Regulatory Flexibility Act are not applicable to the listing process. 
In addition, this proposed rule is exempt from review under Executive 
Order 12866. This proposed rule does not contain a collection-of-
information requirement for the purposes of the Paperwork Reduction 
Act.

Federalism

    E.O. 13132 requires agencies to take into account any federalism 
impacts of regulations under development. It includes specific 
consultation directives for situations where a regulation will preempt 
state law, or impose substantial direct compliance costs on state and 
local governments (unless required by statute). Pursuant to the 
Executive Order on Federalism, E.O. 13132, the Assistant Secretary for 
Legislative and Intergovernmental Affairs will provide notice of the 
proposed action and request comments from the governors of the states 
in which the two DPSs proposed to be listed occur.

Environmental Justice

    Executive Order 12898 requires that Federal actions address 
environmental justice in the decision-making process. In particular, 
the environmental effects of the actions should not have a 
disproportionate effect on minority and low-income communities. The 
proposed listing determination is not expected to have a 
disproportionately high effect on minority populations or low-income 
populations.

Coastal Zone Management Act (16 U.S.C. 1451 et seq.)

    Section 307(c)(1) of the Federal Coastal Zone Management Act of 
1972 requires that all Federal activities that affect any land or water 
use or natural resource of the coastal zone be consistent with approved 
state coastal zone management programs to the maximum extent 
practicable. We have determined that this action is consistent to the 
maximum extent practicable with the enforceable policies of approved 
Coastal Zone Management Programs of each of the states within the range 
of the two DPSs. Letters documenting NMFS' determination, along with 
the proposed rule, will be sent to the coastal zone management program 
offices in each affected state. A list of the specific state contacts 
and a copy of the letters are available upon request.

List of Subjects in 50 CFR Part 224

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: September 24, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 224 is 
proposed to be amended as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 224 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In Sec.  224.101(a), amend the table by adding entries for 
Atlantic Sturgeon-Carolina DPS and Atlantic Sturgeon-South Atlantic DPS 
at the end of the table to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

* * * * *

[[Page 61929]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species \1\                                                                    Citation(s) for
------------------------------------------------------------             Where listed                      listing            Citation(s) for critical
            Common name                  Scientific name                                              determination(s)         habitat designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Atlantic Sturgeon--Carolina DPS....  Acipenser oxyrinchus    The Carolina DPS includes all         [INSERT FR CITATION &   NA.
                                      oxyrinchus.             Atlantic sturgeon that spawn in the   DATE WHEN PUBLISHED
                                                              watersheds from the Roanoke River,    AS A FINAL RULE].
                                                              Virginia, southward along the
                                                              southern Virginia, North Carolina,
                                                              and South Carolina coastal areas to
                                                              the Cooper River. The marine range
                                                              of Atlantic sturgeon from the
                                                              Carolina DPS extends from the Bay
                                                              of Fundy, Canada, to the Saint
                                                              Johns River, Florida. The Carolina
                                                              DPS also includes Atlantic sturgeon
                                                              held in captivity (e.g., aquaria,
                                                              hatcheries, and scientific
                                                              institutions) and which are
                                                              identified as fish belonging to the
                                                              Carolina DPS based on genetics
                                                              analyses, previously applied tags,
                                                              previously applied marks, or
                                                              documentation to verify that the
                                                              fish originated from (hatched in) a
                                                              river within the range of the
                                                              Carolina DPS, or is the progeny of
                                                              any fish that originated from a
                                                              river within the range of the
                                                              Carolina DPS.
Atlantic Sturgeon--South Atlantic    Acipenser oxyrinchus    The South Atlantic DPS includes all   [INSERT FR CITATION &   NA.
 DPS.                                 oxyrinchus.             Atlantic sturgeon that spawn in the   DATE WHEN PUBLISHED
                                                              watersheds of the ACE Basin in        AS A FINAL RULE].
                                                              South Carolina to the St. Johns
                                                              River, Florida. The marine range of
                                                              Atlantic sturgeon from the South
                                                              Atlantic DPS extends from the Bay
                                                              of Fundy, Canada, to the Saint
                                                              Johns River, Florida. The South
                                                              Atlantic DPS also includes Atlantic
                                                              sturgeon held in captivity (e.g.,
                                                              aquaria, hatcheries, and scientific
                                                              institutions) and which are
                                                              identified as fish belonging to the
                                                              South Atlantic DPS based on
                                                              genetics analyses, previously
                                                              applied tags, previously applied
                                                              marks, or documentation to verify
                                                              that the fish originated from
                                                              (hatched in) a river within the
                                                              range of the South Atlantic DPS, or
                                                              is the progeny of any fish that
                                                              originated from a river within the
                                                              range of the South Atlantic DPS.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and
  evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).

* * * * *
[FR Doc. 2010-24461 Filed 10-5-10; 8:45 am]
BILLING CODE 3510-22-P