[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Proposed Rules]
[Pages 61872-61904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24459]



[[Page 61871]]

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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Parts 223 and 224



Endangered and Threatened Wildlife and Plants; Proposed Rules

Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 223 and Part 224

RIN 0648-XJ00
[Docket No. 100903414-0414-02]


Endangered and Threatened Wildlife and Plants; Proposed Listing 
Determinations for Three Distinct Population Segments of Atlantic 
Sturgeon in the Northeast Region

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

ACTION: Proposed rule; request for comments.

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SUMMARY: We, NMFS, have completed an Endangered Species Act (ESA) 
status review for Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus). 
Based on the status review report (ASSRT, 2007), and other information 
available since completion of the status review report, we have 
determined that the species is comprised of five distinct population 
segments (DPSs) that qualify as species under the ESA: Gulf of Maine 
(GOM); New York Bight (NYB); Chesapeake Bay (CB); Carolina; and South 
Atlantic. We have also determined that, for those DPSs that are located 
within the jurisdiction of NMFS' Northeast Region, listing as 
threatened is warranted for the GOM DPS, and listing as endangered is 
warranted for the NYB DPS and CB DPS. A separate proposed listing 
determination is issued for the two DPSs within NMFS' Southeast Region 
in today's Federal Register.

DATES: Comments on this proposal 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 locations and times of the hearings will be 
published in the Federal Register not less than 15 days before the 
hearings are held.

ADDRESSES: You may submit comments, identified by the RIN 0648-XJ00, by 
any of the following methods:
    <bullet> Federal eRulemaking Portal: http//www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: To the attention of Lynn Lankshear at (978) 281-9394.
    <bullet> Mail or hand-delivery: Submit written comments to the 
Assistant Regional Administrator, Protected Resources Division, NMFS, 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930.
    Instructions:
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. All 
Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter 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). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    The proposed rule, status review report, and other reference 
materials regarding this determination are available electronically at 
the following Web site at http://www.nero.noaa.gov/prot_res/CandidateSpeciesProgram/cs.htm or by submitting a request to the 
Assistant Regional Administrator, Protected Resources Division, NMFS, 
Northeast Region, 55 Great Republic Drive, Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Lynn Lankshear, NMFS, Northeast Region 
(978) 282-8473; Kimberly Damon-Randall, NMFS, Northeast Region (978) 
282-8485; or Marta Nammack, NMFS, Office of Protected Resources (301) 
713-1401.

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited

    We solicit scientific and commercial information to inform the 
listing determinations for the GOM, NYB, and CB DPSs to ensure that the 
final action resulting from this proposal considers information that is 
comprehensive and current. We particularly seek comments concerning: 
information on the abundance and distribution of Atlantic sturgeon 
belonging to the GOM, NYB, and/or the CB DPSs; information concerning 
the viability of and/or threats to Atlantic sturgeon belonging to the 
GOM, NYB, and/or the CB DPSs; efforts being made to protect Atlantic 
sturgeon belonging to the GOM, NYB, or CB DPSs; and the mixing of fish 
from different DPSs in parts of their ranges, particularly the marine 
environment.
    We are not proposing critical habitat for the GOM, NYB, or CB DPSs 
at this time, given that further analysis of GIS mapping data is 
necessary for determining the critical habitat of each of the three 
DPSs. Therefore, we will propose to designate critical habitat for each 
DPS in a separate Federal Register notification once analysis of the 
data is complete. If the proposed listing is finalized, a recovery plan 
will be prepared for each DPS. In addition, any protective regulations 
determined to be necessary and advisable for the conservation of the 
GOM DPS under ESA section 4(d) will be proposed in a subsequent Federal 
Register document.

Background

    There are two subspecies of Atlantic sturgeon--Acipenser oxyrinchus 
oxyrinchus, which is commonly referred to as Atlantic sturgeon, and 
Acipenser oxyrinchus desotoi, commonly referred to as Gulf sturgeon. 
This proposed rule addresses the subspecies Acipenser oxyrinchus 
oxyrinchus (hereafter referred to as Atlantic sturgeon), which is 
distributed along the eastern coast of North America.

Listing Species Under the Endangered Species Act

    We, NMFS, are responsible for determining whether Atlantic sturgeon 
are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). 
Accordingly, based on the statutory, regulatory, and policy provisions 
described below, the steps we followed in making our listing 
determination for Atlantic sturgeon were to: (1) Determine how Atlantic 
sturgeon meet the definition of ``species''; (2) determine the status 
of the species and the factors affecting it; and (3) identify and 
assess efforts being made to protect the species and determine if these 
efforts are adequate to mitigate existing threats.
    To be considered for listing under the ESA, a group of organisms 
must constitute a ``species.'' A ``species'' 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 NMFS 
and U.S. Fish and Wildlife Service (collectively the ``Services'') 
adopted a policy to clarify our interpretation of the phrase ``distinct 
population segment of any species of vertebrate fish or wildlife'' (61 
FR 4722). The joint DPS policy describes two criteria that must be 
considered when identifying DPSs: (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 further stated in the joint policy, if a 
population segment is discrete and significant (i.e., it meets the DPS 
policy criteria), its evaluation for endangered or threatened status 
will be based on the ESA's definition of those terms and a

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review of the five factors enumerated in section 4(a)(1) of the ESA.
    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.'' As provided in section 4(a) of the 
ESA, the statute requires us to determine whether any species is 
endangered or threatened because of any of the following five factors: 
(1) The present or threatened destruction, modification, or curtailment 
of its habitat or range; (2) overutilization for commercial, 
recreational, scientific, or educational purposes; (3) disease or 
predation; (4) the inadequacy of existing regulatory mechanisms; or (5) 
other natural or manmade factors affecting its continued existence 
(section 4(a)(1)(A)(E)).
    Section 4(b)(1)(A) of the ESA further requires that listing 
determinations be based solely on the best scientific and commercial 
data available after taking into account efforts being made to protect 
the species. In judging the efficacy of existing protective efforts, we 
rely on the Service's joint ``Policy for Evaluation of Conservation 
Efforts When Making Listing Decisions'' (``PECE''; 68 FR 15100; March 
28, 2003). The PECE provides direction for consideration of 
conservation efforts that have not been implemented, or have been 
implemented but not yet demonstrated effectiveness.

Status Review

    We first identified Atlantic sturgeon as a candidate species in 
1991; at that time, the candidate species list served to notify the 
public that we had concerns regarding these species that may warrant 
listing in the future, and it facilitated voluntary conservation 
efforts. On June 2, 1997, the Services received a petition from the 
Biodiversity Legal Foundation requesting that we list Atlantic sturgeon 
in the United States 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 (subsequently changed 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 20-40 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 with the U.S. Fish and Wildlife Service 
(FWS) and the ASMFC entitled ``Status and Management of Atlantic 
Sturgeon,'' to discuss the status of Atlantic sturgeon along the 
Atlantic Coast and determine what obstacles, if any, were impeding 
their recovery (Kahnle et al., 2005). The results of the workshop 
indicated some river populations (hereafter referred to as 
``subpopulations'') seemed to be recovering while others were 
declining. Bycatch and habitat degradation were noted as possible 
causes for continued declines.
    Based on the information gathered from the 2003 workshop on 
Atlantic sturgeon, we decided that a second review of Atlantic sturgeon 
status was needed to determine if listing as endangered or threatened 
under the ESA was warranted. We, therefore, established a status review 
team (SRT) consisting of NMFS, FWS, and U.S. Geological Survey (USGS) 
scientists with relevant expertise to assist us in assessing the 
viability of the species throughout all or a significant portion of its 
range. The SRT was asked to consider the best scientific and commercial 
information available, including the technical information and comments 
from state and regional experts. The draft status review report 
prepared by the SRT was peer reviewed by experts from academia, and 
their comments were incorporated. A Notice of Availability of this 
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 (ASSRT, 2007) (i.e., 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.
    The status review report upon which this proposed rule is based 
provides extensive information on Atlantic sturgeon biology, life 
history, distribution, and abundance to support its conclusions. A 
summary of this information is provided below. More detailed 
information is available in the status review report.

Biology and Life History of Atlantic Sturgeon

    Atlantic sturgeon are distinguished by armor-like plates and a long 
snout with a ventrally located protruding mouth. Four barbels crossing 
in front of the mouth help the sturgeon to locate prey. Sturgeon are 
omnivorous benthic feeders (feed off the bottom) 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).
    The general life history pattern of Atlantic sturgeon is that of a 
long lived (approximately 60 years; Mangin, 1964; Stevenson and Secor, 
1999), late maturing, estuarine dependent, anadromous species (ASSRT, 
2007). They can reach lengths up to 14 feet (4.26 m), and weigh over 
800 pounds (~364 kg).
    Fecundity of female Atlantic sturgeon has been correlated with age 
and body size, with observed egg production ranging from 400,000 to 4 
million eggs per spawning year (Smith et al., 1982; Van Eenennaam et 
al., 1996; Van Eenennaam and Doroshov, 1998; Dadswell, 2006). Female 
gonad weight varies from 12-25 percent of the total body weight (Smith, 
1907; Huff, 1975; Dadswell, 2006). Therefore, the fecundity of a 770-
pound (350 kg) female, like the one captured in the St. John River, 
Canada, in 1924, could be 7-8 million eggs (Dadswell, 2006). The 
average age at which 50 percent of the maximum lifetime egg production 
is achieved is estimated to be 29 years (Boreman, 1997).
    Atlantic sturgeon likely do not spawn every year. Multiple studies 
have shown

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that spawning intervals range from 1-5 years for males (Smith, 1985; 
Collins et al., 2000; Caron et al., 2002) and 2-5 years for females 
(Vladykov and Greeley, 1963; Van Eenennaam et al., 1996; Stevenson and 
Secor, 1999). Spawning behavior also differs between the sexes. While 
there is a window of time for each river during which spawning occurs, 
spawning females do not migrate upstream together. Individual females 
make rapid spawning migrations upstream and quickly depart following 
spawning (Bain, 1997). Spawning males usually arrive on the spawning 
grounds before any of the females have arrived and leave after the last 
female has spawned (Bain, 1997). Presumably, this provides an 
opportunity for a single male to fertilize eggs of multiple females.
    Spawning is believed to occur in flowing water between the salt 
front of estuaries and the fall line of large rivers, where optimal 
flows are 46-76 cm/s and depths are 11-27 m (Borodin, 1925; Leland, 
1968; Scott and Crossman, 1973; Crance, 1987; Bain et al., 2000). 
Sturgeon eggs are highly adhesive and are deposited on the bottom 
substrate, usually on hard surfaces such as cobble (Gilbert, 1989; 
Smith and Clugston, 1997). Hatching occurs approximately 94 and 140 
hours after egg deposition at temperatures of 20[deg] and 18 [deg]C, 
respectively, and, once hatched, larvae assume a demersal existence 
(Smith et al., 1980). The yolksac larval stage is completed in about 8-
12 days, during which time the larvae move downstream to the rearing 
grounds (Kynard and Horgan, 2002). During the first half of this 
migration, larvae move only at night and use benthic structure (e.g., 
gravel matrix) as refuge during the day (Kynard and Horgan, 2002). 
During the latter half of migration to the rearing grounds, when larvae 
are more fully developed, movement occurs during both day and night. 
Larvae transition into the juvenile phase as they continue to move even 
further downstream into brackish waters, developing a tolerance to 
salinity as they go, and eventually become residents in estuarine 
waters for months to years before emigrating to open ocean as subadults 
(Holland and Yelverton, 1973; Doevel and Berggen, 1983; Waldman et al., 
1996a; Dadswell, 2006; ASSRT, 2007).
    Atlantic sturgeon that originate from different rivers demonstrate 
differences in growth rate, maturation, and timing of spawning. For 
example, Atlantic sturgeon mature in South Carolina river systems at 5 
to 19 years (Smith et al., 1982), in the Hudson River at 11 to 21 years 
(Young et al., 1998), and in the Saint Lawrence River at 22 to 34 years 
(Scott and Crossman, 1973). In general, Atlantic sturgeon 
subpopulations show clinal variation with faster growth and earlier age 
at maturation for fish originating from more southern systems, though 
not all data sets conform to this trend. Timing of spawning migrations 
also exhibit a latitudinal pattern in which migrations generally occur 
during February-March in southern systems, April-May in mid-Atlantic 
systems, and May-July in Canadian systems (Murawski and Pacheco, 1977; 
Smith, 1985; Bain, 1997; Smith and Clugston, 1997; Caron et al., 2002). 
In some rivers, predominantly in the south, a fall spawning migration 
may also occur (Rogers and Weber, 1995; Weber and Jennings, 1996; Moser 
et al., 1998).

Distribution and Abundance

    Historically, Atlantic sturgeon were present in approximately 38 
rivers in the United States from St. Croix, ME, to the Saint Johns 
River, FL, 35 of which have been confirmed to have supported spawning 
for Atlantic sturgeon (ASSRT, 2007). It is unknown how many Canadian 
rivers were historically used by Atlantic sturgeon. However, it is 
likely that Atlantic sturgeon spawn(ed) in the Miramichi, Shubenacadie, 
Avon, Annapolis, and in other systems of similar size in addition to 
the presently known subpopulations that spawn in the Saint Lawrence 
River and Saint John River (reviewed in Dadswell, 2006; ASSRT, 2007). 
Overall, historical sightings of Atlantic sturgeon were generally 
reported from Hamilton Inlet, Labrador, south to the Saint Johns River, 
Florida (Murawski and Pacheko, 1977; Smith and Clugston, 1997; ASSRT, 
2007). Occurrences south of the Saint Johns River, Florida, and north 
of Hamilton Inlet, Labrador, may have always been rare.
    It is clear that Atlantic sturgeon underwent significant range-wide 
declines from historical abundance levels due to overfishing (reviewed 
in Smith and Clugston, 1997). Although Atlantic sturgeon had been 
previously exploited in commercial fisheries (Scott and Crossman, 1973; 
Taub, 1990; Dadswell, 2006; ASSRT, 2007), records from the 1700s and 
1800s document large numbers of sturgeon in many rivers along the 
Atlantic coast (Kennebec River Resource Management Plan, 1993; 
Armstrong and Hightower, 2002). However, in 1870, a significant fishery 
for the species developed when a caviar market was established. Record 
landings were reported in 1890, when over 3,350 metric tons (mt) of 
Atlantic sturgeon were landed from coastal rivers along the Atlantic 
Coast (reviewed in Smith and Clugston, 1997; Secor and Waldman, 1999). 
The fishery collapsed in 1901, 10 years after peak landings, when less 
than 10 percent (295 mt) of its 1890 peak landings were reported. 
During the 1950s, the remaining fishery switched to targeting sturgeon 
for flesh, rather than caviar. Commercial fisheries were active in many 
rivers during all or some of the period from 1962 to 1997, albeit at 
much lower levels than in the late 1800s--early 1900s (Taub, 1990; 
Smith and Clugston, 1997). Nevertheless, many of these contemporary 
fisheries also resulted in overfishing, which prompted the ASMFC to 
impose the 1998 coastwide moratorium for fisheries targeting Atlantic 
sturgeon and NMFS to close the EEZ to Atlantic sturgeon retention in 
1999.
    Currently, Atlantic sturgeon presence is documented in 36 rivers in 
the United States and Canada, combined (ASSRT, 2007; J. Sulikowski, 
UNE, pers. comm.). At least 18 rivers are believed to support spawning 
based on available evidence (i.e., presence of young-of-year or gravid 
Atlantic sturgeon documented within the past 15 years) (ASSRT, 2007). 
These rivers are: Saint Lawrence, QB; Annapolis, NS; Saint John, NB; 
Kennebec, ME; Hudson, NY; Delaware, NJ/DE/PA; James, VA; Roanoke, NC; 
Tar-Pamlico, NC; Cape Fear, NC; Waccamaw, SC; Great PeeDee, SC; 
Combahee, SC; Edisto, SC; Savannah, SC/GA; Ogeechee, GA; Altamaha, GA; 
and, the Satilla, GA (ASSRT, 2007). Rivers with possible, but 
unconfirmed, spawning include: St Croix, NB/ME; Penobscot, 
Androscoggin, and Sheepscot, ME, York, VA; Neuse, NC; Santee and Cooper 
Rivers; spawning may occur in the Santee and/or the Cooper Rivers, but 
it may not result in successful recruitment (ASSRT, 2007).
    Comprehensive information on current abundance of Atlantic sturgeon 
is lacking for any of the spawning rivers (ASSRT, 2007). In the United 
States, an estimate of 870 spawning adults/year is available for the 
Hudson River (Kahnle et al., 2007). An estimate of 343 spawning adults/
year is available for the Altamaha River, GA, based on data collected 
in 2004-2005 (Schueller and Peterson, 2006). Data collected from the 
Hudson River and Altamaha River studies cannot be used to estimate the 
total number of adults in either subpopulation, since mature Atlantic 
sturgeon may not spawn every year (Vladykov and Greeley, 1963; Smith, 
1985; Van Eenennaam et al., 1996; Stevenson and Secor, 1999; Collins et 
al. 2000; Caron et al., 2002), and it is unclear to what extent mature 
fish in a non-spawning condition occur on the

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spawning grounds. Nevertheless, since the Hudson and Altamaha rivers 
are presumed to have the healthiest Atlantic sturgeon subpopulations 
within the United States, other U.S. subpopulations are predicted to 
have fewer spawning adults than either the Hudson or the Altamaha 
(ASSRT, 2007). In Canada, an estimate of spawning size is available for 
the Saint Lawrence River where tagging work suggests a total spawning 
subpopulation of over 500 adults (Caron et al., 2002; Dadswell, 2006).
    Surveys and other programs (e.g., reward programs) have provided 
more qualitative information on Atlantic sturgeon subpopulations. While 
these programs may not have sufficient information by which to generate 
any subpopulation estimate(s), they do provide some river-specific 
information on abundance, trends, evidence of spawning, and/or 
documentation of multiple-year classes. For example, a multi-filament 
gill net survey conducted intermittently in the Kennebec River from 
1977-2000 captured 336 Atlantic sturgeon (9 adults and 327 subadults) 
(Squiers, 2004). During this period, the catch-per-unit effort (CPUE) 
of subadult Atlantic sturgeon increased by a factor of 10-25 (1977-1981 
CPUE = 0.30 versus 1998-2000 CPUE = 7.43). The CPUE of adult Atlantic 
sturgeon showed a slight increase over the same time period (1977-1981 
CPUE = 0.12 versus 1998-2000 CPUE = 0.21) (Squiers, 2004).
    An intensive gill net survey was conducted in the Merrimack River 
from 1987-1990 to determine annual movements, spawning, summering, and 
wintering areas of shortnose and Atlantic sturgeon (Kieffer and Kynard, 
1993). Thirty-six Atlantic sturgeon were captured (70-156 cm total 
length (TL)); most were under 100 cm TL, suggesting that these were all 
subadult sturgeon (Kieffer and Kynard, 1993).
    In Delaware, gill net surveys are conducted on the Delaware River 
by the state's Division of Fish and Wildlife as part of their Atlantic 
Sturgeon Research program. Since 1991, more than 2,000 Atlantic 
sturgeon have been captured and tagged (DNREC, 2009). Based on their 
length, most are believed to have been subadults. In September 2009, 
however, personnel captured their smallest sturgeon yet; an age 0 fish, 
which was 7 inches TL (178 mm) and weighed less than an ounce (DNREC, 
2009). In all, 34 young-of-year (YOY) sturgeon were caught during the 
sampling period (September 9-November 9, 2009), ranging in size from 
178 to 349 mm TL (Fisher, 2009). These captures provide evidence that 
successful spawning is still occurring in the Delaware River.
    Within the Chesapeake Bay, the FWS has been funding the Maryland 
Reward Program since 1996; this program has resulted in the 
documentation of approximately 1,700 Atlantic sturgeon. Five hundred 
and sixty-seven of these fish were hatchery fish, of which 462 were 
first time captures (14 percent recapture rate), and the remaining 
captures (1,133) were wild fish.
    Virginia also instituted an Atlantic sturgeon reward program in the 
Chesapeake Bay in 1997 and 1998 (ASSRT, 2007; A. Spells, FWS, pers. 
comm., 2008). This reward program documented and measured 295 Atlantic 
sturgeon. Data collected during the reward program documents the 
presence of YOY fish. Such data include length information which shows 
that 18.6 percent (55 of 295 measured) of the fish caught were within 
the 20 to 40 cm fork length size class (A. Spells, FWS, pers. comm., 
2008). In addition, aging of fish spines collected from the fish 
suggested that 34 percent were age 1 (A. Spells, FWS, pers. comm., 
2008). This information is important in that it strongly suggests the 
presence of spawning in one or more rivers that flow into the Bay. 
Further evidence of Atlantic sturgeon spawning in the Chesapeake Bay 
area is provided by three carcasses of large adults found in the James 
River in 2000-2003; the discovery of a 213 cm TL carcass of an adult 
found in the Appomattox River in 2005; the capture and release of a 240 
cm TL Atlantic sturgeon near Hoopers Island, MD in April, 1998 (S. 
Minkkinen, FWS, pers. comm., 2006); documentation of a gravid adult 
female Atlantic sturgeon off Tilghman Island, MD in April, 2007 (the 
first gravid female documented in the Maryland portion of the 
Chesapeake Bay since the early 1970s); and the capture of several males 
producing milt (sperm) in the James River in 2007 and 2008 (A. Spells, 
FWS, pers. comm.).

Identification of Distinct Population Segments

    As described above, the ESA's definition of ``species'' includes 
``any subspecies of fish or wildlife or plants, and any distinct 
population segment of any species or vertebrate fish or wildlife which 
interbreeds when mature.'' As previously described, Atlantic sturgeon 
originating from different rivers are known to co-occur in the marine 
environment and use multiple river systems for life functions, such as 
foraging. The DPS policy does not require absolute separation of a DPS 
from other members of its species (61 FR 4722; February 7, 1996). The 
high degree of reproductive isolation of Atlantic sturgeon (i.e., 
homing to their natal rivers for spawning) (K. Hattala,, NYDEC, pers. 
comm., 1998; Wirgin et al., 2000; King et al., 2001; Waldman et al., 
2002) as well as the ecological uniqueness of those riverine spawning 
habitats and the genetic diversity among subpopulations, provides 
evidence that several populations meet the DPS Policy criteria. 
Therefore, prior to evaluating the conservation status for Atlantic 
sturgeon, and in accordance with the joint DPS policy, we 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.
    As has already been discussed, adult and subadult Atlantic sturgeon 
which originate from different rivers mix in the marine environment 
(Stein et al., 2004; USFWS, 2004). Nevertheless, there is marked 
separation of Atlantic sturgeon as a result of both spatial and 
temporal separation of reproduction among river subpopulations. Tagging 
studies and genetic analyses provide evidence that Atlantic sturgeon 
return to their natal rivers for spawning (K. Hattala, NYDEC, pers. 
comm., 1998; Wirgin et al., 2000; King et al., 2001; Waldman et al., 
2002). As previously mentioned, Atlantic sturgeon are temporally 
separated with respect to spawning, since all adults are not 
reproductively active at the same time within each year (Murawski and 
Pacheco, 1977; Smith, 1985; Rogers and Weber, 1995; Bain, 1997; Smith 
and Clugston, 1997; Moser et al., 1998; Caron et al., 2002). For 
example, Atlantic sturgeon spawn in the Hudson River in May through 
July (Bain, 1997), while spawning in the St. Lawrence

[[Page 61876]]

River occurs in June through July (Caron et al., 2002).
    The SRT also considered genetics data to further inform its 
decisions as to whether there is discreteness amongst Atlantic sturgeon 
subpopulations. Genetics analyses for Atlantic sturgeon using 
mitochondrial DNA (mtDNA), which is maternally inherited, and nuclear 
DNA (nDNA), which reflects the genetics of both parents, have 
consistently shown that Atlantic sturgeon subpopulations are 
genetically diverse and that individual subpopulations can be 
differentiated (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 supplemental data, 2006; Grunwald et al., 2008). New 
analyses of both mtDNA and nDNA were conducted specifically for the 
status review. In comparison to previous studies, the genetic analyses 
for the status review employed greater sample sizes from multiple 
rivers, and limited the samples analyzed to those collected from YOY 
and mature adults (> 130 cm TL) to ensure that the fish originated from 
the river in which it was sampled (Wirgin and King supplemental data, 
2006; ASSRT, 2007). The results for both the mtDNA haplotype and 
microsatellite (nDNA) allelic frequencies indicated that all of the 
Atlantic sturgeon subpopulations for which there are samples available 
are genetically differentiated (ASSRT, 2007; Tables 4 and 5) from each 
other. The results of the mtDNA analysis used for the status review 
report were also subsequently published by Grunwald et al. (2008). In 
comparison to the mtDNA analyses used for the status review report, 
Grunwald et al. used additional samples, some from fish in the size 
range (< 130 cm TL) excluded by Wirgin and King (supplemental data, 
2006) because they were smaller than those considered to be mature 
adults. Nevertheless, the results were the same and demonstrated that 
each of the 12 sampled Atlantic sturgeon subpopulations could be 
genetically differentiated from each other (Grunwald et al., 2008).
    Genetic distances and statistical analyses (bootstrap values and 
assignment test values) were also used to investigate significant 
relationships among, and differences between, Atlantic sturgeon 
subpopulations (ASSRT, 2007, Table 6 and Figures 16-18). Overall, the 
genetic markers used in this analysis resulted in an average accuracy 
of 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 population groups (Kennebec River, Hudson River, James River, 
Albemarle Sound, and Savannah/Ogeechee/Altamaha Rivers) when using 
microsatellite data collected only from YOY and adults. A phylogenetic 
tree (neighbor joining tree) was produced from only YOY and adult 
samples (to reduce the likelihood of including strays from other 
subpopulations) using the microsatellite analysis. Bootstrap values 
(which measure how consistently the data support the tree structure) 
for this tree were for analyses of: (1) 12 loci of samples collected 
from YOY and adults; and (2) 7 loci for samples of YOY, subadult, and 
adult Atlantic sturgeon (ASSRT, 2007, Figures 16-18). Classification 
success rate averaged 79.0 percent for determining a sturgeon's natal 
river and 86.9 percent for correctly classifying sturgeon to one of 
five population groups (Kennebec River, Hudson River, James River, 
Albemarle Sound, and Savannah/Ogeechee/Altamaha Rivers) (ASSRT, 2007). 
Regarding sturgeon from northeast rivers, this analysis resulted in a 
range of 81 to 89 percent accuracy in determining a sturgeon's natal 
river of origin and correctly classifying a sturgeon to a population 
group. To further assess the accuracy of the results, King 
(supplemental data, 2006) reanalyzed the nDNA using a greater number of 
loci. His results showed that increasing the number of loci from 7 to 
12 improved the classification rates for natal origin and 
identification of population groupings (e.g., from 84 percent to 95 
percent for the James River), but did not change the conclusion that 
there are five discrete Atlantic sturgeon population segments in the 
United States.
    In summary, evidence to support that there are discrete Atlantic 
sturgeon populations includes temporal and spatial separation during 
spawning and the results from genetic analyses. Genetic samples for YOY 
and spawning adults were not available for river populations 
originating from other rivers in the northeast region. 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 
Delaware River and York River populations in the Northeast. Atlantic 
sturgeon river populations also grouped into five population segments 
in this analysis (Delaware River population with the Hudson River 
population, and York River population with the James River population).
    We have considered the information on Atlantic sturgeon population 
structuring provided in the status review report and Grunwald et al. 
(2008) and have concluded that five discrete Atlantic sturgeon 
population segments are present in the United States, with three 
located in the Northeast: (1)--The ``Gulf of Maine (GOM)'' population 
segment, which includes Atlantic sturgeon that originate from the 
Kennebec River, (2)--the ``New York Bight (NYB)'' population segment, 
which includes Atlantic sturgeon originating from the Hudson and 
Delaware Rivers, and (3)--the ``Chesapeake Bay (CB)'' population 
segment, which includes Atlantic sturgeon that originate from the James 
and York Rivers. Each is markedly separate from the other four 
population segments as a consequence of physical factors.
    With respect to Atlantic sturgeon of Canadian origin, mtDNA 
analysis has shown that Atlantic sturgeon originating from rivers 
ranging from the Kennebec River, Maine, to the Saint Lawrence River, 
Canada, are predominately homogenous (one genotype) (Waldman et al., 
2002; Grunwald et al., 2008; ASSRT, 2007). However, nDNA microsatellite 
analysis has found these same rivers to be genetically diverse (King, 
supplemental data, 2006). The SRT concluded that the differences in 
nDNA were sufficient to determine that Atlantic sturgeon which 
originate in Canada are markedly separate from Atlantic sturgeon of 
U.S. origin.
    The genetic analyses support that at least one, and possibly more, 
discrete Atlantic sturgeon population groupings occur in Canada. The 
SRT did not further consider the status of Atlantic sturgeon 
originating in Canada once it was determined that they were discrete 
from the five U.S. Atlantic sturgeon population groupings. We did not 
consider a listing determination for these populations given the lack 
of information by which to determine whether the Canadian 
subpopulations represent one or more DPSs, and given the regulatory 
controls on import and export of Atlantic sturgeon and their parts per 
the Convention on International Trade in Endangered Species of Wild 
Flora and Fauna (CITES).

Significance

    When the discreteness criterion is met for a potential DPS, as it 
is for the GOM, NYB, and CB population segments in the Northeast 
identified above, the second element that must be considered

[[Page 61877]]

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 five discrete Atlantic sturgeon 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).
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    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. For 
example, riverine spawning/nursery habitat of the Kennebec River 
subpopulation occurs within the Northern Appalachian/Boreal Forest 
ecoregion whose characteristically large expanses of forest, variety of 
swamps, marshes, bogs, ice scoured riverbanks, salt marshes, and rocky 
coastal cliffs were influenced by a geological history that includes 
four glaciation events (TNC, 2008). In contrast, riverine spawning/
nursery habitat of Atlantic sturgeon that originate from the Hudson and 
Delaware Rivers occurs within the Lower New England-Northern Piedmont 
and North Atlantic Coast ecoregions which are characterized by low 
mountains, abundant lakes, and limestone valleys inland and generally

[[Page 61879]]

flat, sandy coastal plains dissected by major tidal river systems near 
the coast (Barbour, 2000; TNC, 2008). The Chesapeake Bay Lowlands 
ecoregion, within which riverine spawning/nursery habitat for the James 
River population grouping of Atlantic sturgeon occurs, presents yet a 
different landscape based on its geologic history. As glaciers that 
extended as far south as present day Pennsylvania began to melt, 
streams and rivers that flowed toward the coast were carved out of the 
landscape (Pyzik et al., 2004). These past events are seen today in the 
characteristic features of the Chesapeake Bay Lowlands ecoregion which 
includes a broad plain to the west of the Bay with generally low slopes 
and gentle drainage dissected by a series of major rivers--the 
Patuxent, Potomac, Rappahannock, York and James--as well as a complex 
and dynamic patchwork of barrier islands, salt marshes, tidal flats and 
large coastal bays along the Delmarva Peninsula (TNC, 2002 in draft). 
Riverine spawning/nursery habitat for the two remaining Atlantic 
sturgeon groupings in the Southeast likewise occur in separate and 
distinct ecoregions. Therefore, the ecoregion delineations support that 
the physical and chemical properties of the Atlantic sturgeon spawning 
rivers are unique to each population grouping. The five discrete U.S. 
Atlantic sturgeon population segments are ``significant'' as defined in 
the DPS policy, given that the spawning rivers for each population 
segment occur in a unique ecological setting.
    Further, because each discrete population segment is genetically 
distinct and reproduces in a unique ecological setting, the loss of any 
one of the discrete population segments is likely to create a 
significant gap in the range of the taxon. Atlantic sturgeon that 
originate from other discrete population segments are not expected to 
re-colonize systems except perhaps over a long time frame (e.g., 
greater than 100 years), given that gene flow is low between the five 
discrete population segments (Secor and Waldman, 1999) and the 
geographic distances between spawning rivers of different population 
segments are relatively large (ASSRT, 2007). Therefore, the loss of any 
of the discrete population segments would result in a significant gap 
in the range of Atlantic sturgeon, and negatively impact the species as 
a whole, given the strong natal homing behavior of the species.
    In summary, the five Atlantic sturgeon discrete population segments 
meet the significance criterion of the DPS policy because they each 
persist in a unique ecological setting, and the loss of any of these 
discrete population segments would result in a significant gap in the 
range of the taxon. As described in the status review report, the SRT 
concluded that these five population segments of Atlantic sturgeon 
within the United States (identified above) should be considered 
significant under the DPS policy guidelines. We, therefore, concur with 
the SRT's conclusion that five Atlantic sturgeon DPSs occur within the 
United States. The five DPSs are hereafter referred to as: (1) GOM, (2) 
NYB, (3) CB, (4) Carolina, and (5) South Atlantic DPSs (Figure 2).

[[Page 61880]]

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Current Status of the GOM, NYB, and CB DPSs

    After completing the DPS analysis, we next considered the current 
status of the three DPSs that occur within the Northeast Region's 
jurisdiction, the GOM, NYB, and CB DPSs, as well as the factors 
affecting each of these Atlantic sturgeon DPSs in relation to the ESA's 
standards for listing (see Analysis of Factors, below). The ESA and its 
implementing regulations require listing determinations to be based on 
the current status of the species and the factors presently affecting 
the species or likely to affect the species in the future.
    Many of the activities causing harm to Atlantic sturgeon have 
occurred for years, even decades. Similarly, some conservation actions 
have been in place for years (e.g., prohibition on catch and retention 
of Atlantic sturgeon). The past impacts of human activity on the GOM, 
NYB, and CB DPSs cannot be particularized in their entirety.

[[Page 61881]]

However, to the extent they have manifested themselves at the 
population level, such past impacts are subsumed in the information 
presented on their current status, recognizing that the benefits to 
these Atlantic sturgeon DPSs as a result of conservation activities 
already implemented may not be evident in the status and trend of the 
DPS for years, given the relatively late age to maturity for Atlantic 
sturgeon and depending on the age class(es) affected.

Gulf of Mexico (GOM) DPS

    The GOM DPS includes all Atlantic sturgeon whose range occurs in 
watersheds from the Maine/Canadian border and extending southward to 
include all associated watersheds draining into the Gulf of Maine as 
far south as Chatham, MA, as well as wherever these fish occur in 
coastal bays, estuaries, and the marine environment from the Bay of 
Fundy, Canada, to the Saint Johns River, FL. Within this range, 
Atlantic sturgeon have been documented from the following rivers: 
Penobscot, Kennebec, Androscoggin, Sheepscot, Saco, Piscataqua, and 
Merrimack. The Kennebec River is currently the only known spawning 
river for the GOM DPS. Evidence of Atlantic sturgeon spawning in other 
rivers of the GOM DPS is not available. However, Atlantic sturgeon 
continue to use these historical spawning rivers and may represent 
additional spawning groups (ASSRT, 2007). The majority of historical 
Atlantic sturgeon spawning habitat is accessible in all but the 
Merrimack River of the GOM DPS. Therefore, the availability of spawning 
habitat does not appear to be the reason for the lack of observed 
spawning in other GOM DPS rivers. However, whether Atlantic sturgeon 
spawning habitat in the GOM DPS is fully functional is difficult to 
quantify.
    Known threats to Atlantic sturgeon of the GOM DPS include effects 
to riverine habitat (e.g., dredging, water quality) as well as threats 
that occur throughout their marine range (e.g., fisheries bycatch). 
There are no current abundance estimates for the GOM DPS of Atlantic 
sturgeon. The CPUE of subadult Atlantic sturgeon in a multi-filament 
gillnet survey conducted on the Kennebec River was considerably greater 
for the period of 1998-2000 (CPUE=7.43) compared to the CPUE for the 
period 1977-1981 (CPUE = 0.30). The CPUE of adult Atlantic sturgeon 
showed a slight increase over the same time period (1977-1981 CPUE = 
0.12 versus 1998-2000 CPUE = 0.21) (Squiers, 2004). There is also new 
evidence of Atlantic sturgeon presence in rivers (e.g., the Saco River) 
where they have not been observed for many years.

New York Bight (NYB) DPS

    The NYB DPS includes all Atlantic sturgeon whose range occurs in 
watersheds that drain into coastal waters, including Long Island Sound, 
the New York Bight, and Delaware Bay, from Chatham, MA to the Delaware-
Maryland border on Fenwick Island, as well as wherever these fish occur 
in coastal bays, estuaries, and the marine environment from the Bay of 
Fundy, Canada, to the Saint Johns River, FL. Within this range, 
Atlantic sturgeon have been documented from the Hudson and Delaware 
rivers as well as at the mouth of the Connecticut and Taunton rivers, 
and throughout Long Island Sound. There is evidence to support that 
spawning occurs in the Hudson and Delaware Rivers. Evidence of Atlantic 
sturgeon spawning in the Connecticut and Taunton Rivers is not 
available. However, Atlantic sturgeon continue to use these historical 
spawning rivers (ASSRT, 2007). The majority of historical spawning 
habitat is accessible to the NYB DPS. Therefore, the availability of 
spawning habitat does not appear to be the reason for lack of observed 
spawning in the Connecticut and Taunton Rivers. However, whether 
Atlantic sturgeon spawning habitat in these rivers is fully functional 
is difficult to quantify.
    Known threats to Atlantic sturgeon of the NYB DPS include effects 
to riverine habitat (e.g., dredging, water quality, and vessel strikes) 
as well as threats that occur throughout their marine range (e.g., 
fisheries bycatch). The only abundance estimate for Atlantic sturgeon 
belonging to the NYB DPS is 870 spawning adults per year for the Hudson 
River subpopulation, based on data collected from 1985-1995 (Kahnle et 
al., 2007). The accuracy of the estimate may be affected by bias in the 
reported harvest or estimated exploitation rate for that time period 
(Kahnle et al., 2007). Underreporting of harvest would have led to 
underestimates of stock size, while underestimates of exploitation 
rates would have resulted in overestimates of stock size (Kahnle et 
al., 2007). In addition, the current number of spawning adults may be 
higher given that the estimate is based on the time period prior to the 
moratorium on fishing for and retention of Atlantic sturgeon.
    There is no abundance estimate for the Delaware River 
subpopulation. Delaware's Department of Natural Resources and 
Environmental Control (DNREC) has been conducting surveys for Atlantic 
sturgeon since 1991 (DNREC, 2009). Atlantic sturgeon are a Delaware 
endangered species (state-listed).

CB DPS

    The CB DPS includes all Atlantic sturgeon whose range occurs in 
watersheds that drain into the Chesapeake Bay and into coastal waters 
from the Delaware-Maryland border on Fenwick Island to Cape Henry, VA, 
as well as wherever these fish occur in coastal bays, estuaries, and 
the marine environment from the Bay of Fundy, Canada, to the Saint 
Johns River, FL. Within this range, Atlantic sturgeon have been 
documented from the James, York, Potomac, Rappahannock, Pocomoke, 
Choptank, Little Choptank, Patapsco, Nanticoke, Honga, and South rivers 
as well as the Susquehanna Flats. Historical evidence suggests that 
several of these, including the James, York, Potomac, Susquehanna, and 
Rappahannock Rivers, were Atlantic sturgeon spawning rivers. However, 
the James River is currently the only known spawning river for the CB 
DPS. Evidence of Atlantic sturgeon spawning in other rivers of the CB 
DPS is not available, although spawning is suspected to occur in the 
York based on genetics data and anecdotal reports. The majority of 
historical Atlantic sturgeon spawning habitat is accessible, but it is 
unknown whether it is fully functional.
    Known threats to Atlantic sturgeon of the CB DPS include effects to 
riverine habitat (e.g., dredging, water quality, vessel strikes) as 
well as threats that occur throughout their marine range (e.g., 
fisheries bycatch). There are no current abundance estimates for the CB 
DPS. The Maryland Reward Program has resulted in the documentation of 
over 1,133 wild Atlantic sturgeon since 1996. The Virginia Atlantic 
sturgeon reward program in the Chesapeake Bay documented and measured 
295 Atlantic sturgeon in 1997 and 1998 (Spells, 2007). However, since 
sturgeon from multiple DPSs occur in the Chesapeake Bay, it is unlikely 
that all of the sturgeon captured in either reward program originated 
from the CB DPS.

Analysis of Factors Affecting the Three Northeast Region DPSs of 
Atlantic Sturgeon

    A species shall be listed if the Secretary of Commerce determines, 
on the basis of the best scientific and commercial data available after 
conducting a review of the species' status, that the species is in 
danger of extinction throughout all or a significant portion of its 
range (i.e., ``endangered'')

[[Page 61882]]

or is likely to become an endangered species within the foreseeable 
future throughout all or a significant portion of its range (i.e., 
``threatened'') because of any one or a combination of the following 
factors: (1) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (2) over utilization for 
commercial, recreational, scientific, or educational purposes; (3) 
disease or predation; (4) the inadequacy of existing regulatory 
mechanisms; or (5) other natural or manmade factors affecting its 
continued existence.
    The SRT took a multi-step approach for each DPS to answer whether 
there were: (1) Sufficient data to conclude whether a DPS is threatened 
or endangered; (2) sufficient data to conclude that a DPS was not 
threatened or endangered; or (3) insufficient data to allow a full 
assessment of the populations within a DPS. The SRT identified the 
threats specific to Atlantic sturgeon and then used a semi-quantitative 
approach to assess the overall effect of those threats to each DPS 
(ASSRT, 2007; Patrick and Damon-Randall, 2008).
    The ESA does not define what timeframe corresponds with the phrase 
``within the foreseeable future'' in its definition of the term 
``threatened.'' Therefore, before beginning the analysis of the Section 
4(a)(1) factors, it was necessary for the SRT to define the timeframe 
(Patrick and Damon-Randall, 2008). Following the example of a past 
status review team (Acropora Biological Review Team, 2005), the 
Atlantic sturgeon SRT determined that the appropriate period of time 
would: (1) Depend on the particular kinds of threats; (2) consider the 
life history characteristics of the species; (3) consider specific 
habitat requirements for the species; and (4) allow for the 
conservation and recovery of the species and the ecosystems upon which 
it depends (ASSRT, 2007; Patrick and Damon-Randall, 2008). Based on 
these, the SRT agreed that 20 years would be the appropriate timeframe 
for defining ``the foreseeable future'' for Atlantic sturgeon (ASSRT, 
2007; Patrick and Damon-Randall, 2008). The SRT also concluded that 20 
years is an appropriate timeframe for determining the status of a 
species, as it was not too far into the future that qualitative 
analysis would prove to be ineffective or unreliable, it allowed 
sufficient time (10+ years) to determine the productivity of Atlantic 
sturgeon subpopulations using standardized protocols (Sweka et al., 
2006), and it is the approximate age of maturity for Atlantic sturgeon 
or is approximately equal to one generation (Scott and Crossman, 1973; 
Smith et al., 1982; Young et al., 1998).

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

    The SRT identified barriers (i.e., dams, tidal turbines), dredging, 
and water quality (e.g., dissolved oxygen levels, water temperature, 
and contaminants) as threats that affect Atlantic sturgeon habitat or 
range. The SRT did not specifically consider global climate change. 
Since completion of the SRT report, additional information has become 
available on the effects of global climate change in the Northeast and 
Mid-Atlantic where habitat for the GOM, NYB, and CB DPSs occurs.
    As noted in the status review report, dams for hydropower 
generation, flood control, and navigation have the potential to affect 
Atlantic sturgeon by impeding access to spawning and foraging habitat, 
modifying free-flowing rivers to reservoirs, and altering downstream 
flows and temperatures. Turbines for power generation could, similarly, 
impede access to spawning and foraging habitat but are also known to 
injure and kill sturgeon as a result of direct contact with the turbine 
blades. Environmental impacts of dredging include direct removal or 
burial of organisms, elevated turbidity or siltation, contaminant 
resuspension, noise or disturbance, alterations to hydrodynamic regime 
and physical habitat, and loss of riparian habitat (Chytalo, 1996; 
Winger et al., 2000). Water quality can be affected by many activities 
such as industrial activities, forestry, agriculture, land development 
and urbanization that can result in discharges of pollutants, changes 
in water temperature and dissolved oxygen levels, alteration of water 
flow, and the addition of nutrients or sediment from erosion. Any of 
these can affect sturgeon at various life stages depending on the 
extent of the threat and the life stage affected. There is a large and 
growing body of literature on past, present, and future impacts of 
global climate change induced by human activities--commonly referred to 
as ``global warming.'' Some of the likely effects commonly mentioned 
are sea level rise, increased frequency of severe weather events, and 
change in air and water temperatures.

Dams

    The SRT used GIS tools and dam location data collected by Oakley 
(2005) to determine the number of miles of available habitat in rivers 
where Atlantic sturgeon historically spawned. As previously described, 
within the GOM DPS, Atlantic sturgeon are known to spawn in the 
Kennebec River. The Penobscot, Sheepscot, Androscoggin, and Merrimack 
Rivers are known to have supported spawning in the past (ASSRT, 2007). 
Atlantic sturgeon occur in the Saco and Piscataqua Rivers, although 
there is no information on historical or current spawning activity for 
Atlantic sturgeon in these rivers (ASSRT, 2007; J. Sulikowski, UNE, 
pers. comm., 2009).
    Historically, the upstream migration of Atlantic sturgeon in the 
Kennebec River was limited to Waterville, ME, which is the location of 
Ticonic Falls (river kilometer (rkm) 98) (NMFS and USFWS, 1998). The 
construction of Edwards Dam in 1837, downstream of the Ticonic Falls, 
denied Atlantic sturgeon access to historical habitat in the Kennebec 
River until 1999 when the dam was removed. Since its removal, access to 
100 percent of historical habitat has been restored. In the 
Androscoggin River, the Brunswick Hydroelectric Dam is located at the 
head-of-tide near the site of the natural falls. The location of 
historical spawning grounds on the Androscoggin is unknown, but it is 
unlikely that Atlantic sturgeon could navigate the natural falls 
located at Brunswick Dam (NMFS and USFWS, 1998). Therefore, the dam is 
unlikely to have limited access of Atlantic sturgeon to their spawning 
habitat. Similarly, Atlantic sturgeon upstream migration within the 
Sheepscot River is thought to have been historically limited to the 
lower river (rkm 32) just below the first dam on the river (rkm 35); 
therefore, 100 percent of the historical habitat (based on river 
kilometers) is available to Atlantic sturgeon in the Sheepscot.
    In contrast to the aforementioned rivers, access to Atlantic 
sturgeon spawning habitat is impeded on the Penobscot River. 
Historically, the falls at Milford, rkm 71, were likely the first 
natural obstacle to Atlantic sturgeon migration on the Penobscot River 
(L. Flagg, MEDMR, pers. comm., 1998). In 1833, the Veazie Dam was 
constructed on the Penobscot River at rkm 56, blocking 21 percent of 
Atlantic sturgeon habitat. In 1875, the Treats Falls Bangor Dam was 
built five kilometers downstream of the Veazie, which also impeded 
migration upstream (ASSRT, 2007). However, this dam was breached in 
1977 (ASSRT, 2007). Therefore, 79 percent of Atlantic sturgeon habitat 
is currently accessible on the Penobscot (ASSRT, 2007). In 2008, the 
Penobscot River Restoration Trust, a non-profit corporation, exercised 
its option to purchase the Veazie and two other dams

[[Page 61883]]

on the Penobscot (ASSRT, 2007). In doing so, the Trust has the right 
to, in part, decommission or remove the Veazie Dam, thus reopening 
miles of habitat for Atlantic sturgeon and other diadromous species 
(ASSRT, 2007). However, funds for the removal need to be generated and 
permits need to be secured, and it remains uncertain whether all of the 
goals will be achieved. If Atlantic sturgeon were able to ascend the 
falls at Milford, they could have migrated without obstruction to 
Mattaseunk (rkm 171) (ASSRT, 2007). However, evidence is lacking to say 
with certainty that Atlantic sturgeon were able to ascend the falls at 
Milford.
    Information on Atlantic sturgeon use of the Saco River in Maine 
became available after completion of the status review report. The last 
focused study of the Saco River was almost 30 years ago, and continued 
use of the river by Atlantic sturgeon was uncertain at the time of the 
status review report. However, Atlantic sturgeon have been captured 
during routine trawl sampling in the river during 2008 and 2009 as part 
of a 2-year monitoring project of the Saco River/Estuary. Tagging and 
tracking of the captured fish has shown that Atlantic sturgeon are 
making use of the river up to the Cataract Dam (J. Sulikowski, UNE, 
pers. comm., 2009), the first dam on the river at approximately rkm 6 
(Atlantic Salmon Commission, 1983). There are several dams on the Saco 
River known to have blocked fish passage for species such as Atlantic 
salmon, shad, and alewives (MEDMR, 1994). The effect of such dams on 
the Atlantic sturgeon that currently use the river is unknown. 
Likewise, there are several dams on the Piscataqua River, and the 
effect of such dams on the Atlantic sturgeon that currently use the 
river is unknown.
    Within the GOM DPS, access to historical spawning habitat is most 
severely impacted in the Merrimack River (ASSRT, 2007). Hoover (1938) 
identified Amoskeag Falls (rkm 116) as the historical limit for 
Atlantic sturgeon in the Merrimack River. In the 1800s, construction of 
the Essex Dam in Lawrence, MA (rkm 49) blocked the migration of 
Atlantic sturgeon to 58 percent of its historically available habitat 
(Oakley, 2003; ASSRT, 2007). Tidal influence extends to rkm 35; 
however, in the summer months when river discharge is lowest, the salt 
wedge extends upriver, resulting in approximately 19 km of tidal 
freshwater and 9 km of freshwater habitat (Keiffer and Kynard, 1993). 
Based on a detailed description by Keiffer and Kynard (1993), the 
accessible portions of the Merrimack seem to be suitable for Atlantic 
sturgeon spawning and nursery habitat. Nevertheless, the presence of 
the dam means that only 42 percent of historical Atlantic sturgeon 
habitat is currently available (ASSRT, 2007).
    Within the NYB DPS, there is evidence of Atlantic sturgeon spawning 
in the Hudson and Delaware Rivers (ASSRT, 2007). Historical records 
indicate that Atlantic sturgeon spawned in the Taunton River at least 
until the turn of the century (ASSRT, 2007), and also occurred in the 
Connecticut River (Judd, 1905; Murawski and Pacheco, 1977; Secor, 2002; 
ASSRT, 2007). By 1898, the overall New England harvest of Atlantic 
sturgeon was quite low, 36 mt, and only occurred in Maine, 
Massachusetts, and Connecticut (Secor, 2002). There is no recent 
evidence (within the last 15 years) to confirm that spawning currently 
occurs in either the Taunton or Connecticut Rivers (ASSRT, 2007). 
Atlantic sturgeon are present in both rivers, and likely represent 
sturgeon originating from other spawning rivers along the coast.
    In general, Atlantic sturgeon access to historical or spawning 
habitat believed to be historical is relatively unimpeded on all four 
of these NYB DPS rivers. The first impediment to migrating Atlantic 
sturgeon on the Hudson River is the Federal Dam located at Troy, NY 
(ASSRT, 2007). This dam location is upstream of Catskill (rkm 204), 
which is the northern extent of Atlantic sturgeon spawning and nursery 
habitat (Kahnle et al., 1998). Therefore, 100 percent of Atlantic 
sturgeon habitat is still available on the Hudson (ASSRT, 2007). 
Similarly, 100 percent of Atlantic sturgeon habitat is believed to be 
accessible on the Delaware River where 140 rkm of Atlantic sturgeon 
habitat are available extending from Delaware Bay to the fall line at 
Trenton, NJ with no dams present (ASSRT, 2007). Historical upstream 
migration of Atlantic sturgeon in the Taunton River is unknown. 
However, Atlantic sturgeon have access to 89 percent of the river 
downstream of the Town River Pond Dam (ASSRT, 2007). Similarly, it is 
not clear how far up the Connecticut River Atlantic sturgeon 
historically migrated. In all but low flow years, it is likely that 
Atlantic sturgeon could pass the Enfield Rapids prior to dam 
construction (Enfield Dam), which occurred in three stages between 1829 
and 1881 (Judd, 1905). The falls at South Hadley, MA, which is now the 
site of the Holyoke Dam, are considered the upstream limit of sturgeon 
in this system; however, there is one historical record of an Atlantic 
sturgeon sighted as far upstream as Hadley, MA (24 rkm upstream from 
South Hadley) (ASSRT, 2007). Also, in 2006 an Atlantic sturgeon was 
taken in the fish lift at the Holyoke Dam (R. Murray, HG&E, pers. 
comm., 2006). Since the Enfield Dam has been breached, an additional 90 
km of habitat are available, and depending on the interpretation of 
historical spawning grounds, either 100 percent (Holyoke Dam, South 
Hadley, MA), or 86 percent (Hadley, MA) of historical Atlantic sturgeon 
habitat is available (ASSRT, 2007).
    For the CB DPS, there is evidence that Atlantic sturgeon currently 
spawn in the James River (ASSRT, 2007). The observed presence of YOY 
and adult sturgeon in the York River suggests that spawning may still 
occur there (Musick et al., 1994; K. Place, Commercial Fisherman, pers. 
comm., 2006; ASSRT, 2007). The Susquehanna, Potomac, Rappahannock, and 
Nanticoke Rivers also supported Atlantic sturgeon spawning in the past, 
but there is no conclusive evidence that spawning still occurs in any 
of these rivers (ASSRT, 2007). Based on the review by Oakley, 100 
percent of Atlantic sturgeon habitat is currently accessible in these 
rivers (ASSRT, 2007). Although dams are present, most are located 
upriver of where spawning is expected to have historically occurred. 
For example, four dams were constructed from 1904-1932 on the 
Susquehanna River, but none of these dams are suspected to have impeded 
Atlantic sturgeon spawning habitat as the lowermost dam (Conowingo) is 
located above the suspected historical spawning grounds (Steve 
Minkkinen, USFWS, pers. comm., 2006). The Embrey Dam was built in 1910 
above the fall line of the Rappahannock River and may have blocked the 
upstream migration of Atlantic sturgeon (ASSRT, 2007). This dam was 
breached in 2004 and 100 percent of historical Atlantic sturgeon 
habitat is believed to be accessible (ASSRT, 2007).

Dredging

    Dredging and filling operations can impact important features of 
Atlantic sturgeon habitat because they disturb benthic fauna, eliminate 
deep holes, and alter rock substrates necessary for spawning (Smith and 
Clugston, 1997). Deposition of dredge sediment has been shown to affect 
the distribution of Atlantic sturgeon (Hatin et al., 2007). Dredging 
can also result in direct takes (killing and injuring) of Atlantic 
sturgeon. Such takes have the potential to affect the range of Atlantic 
sturgeon if the takings contribute to the extirpation of a DPS.
    Dickerson (2006) summarized observed takings of Gulf, shortnose, 
and

[[Page 61884]]

Atlantic sturgeon from dredging activities conducted by the Army Corps 
of Engineers (ACOE) in the United States; overall 24 sturgeon (2 Gulf, 
11 shortnose, and 11 Atlantic sturgeon) were observed during the years 
of 1990-2005. Of the 24 sturgeon captured, 15 (62.5 percent) were 
reported as dead. The ASSRT calculated a minimum take of 0.6 Atlantic 
sturgeon per year based on hopper dredge takes since 1995 and given 
that dredging efforts were relatively similar among years (ACOE, 2006). 
Both of these are considered minimum estimates since observed takes of 
Atlantic sturgeon are documented incidental to observer coverage of 
dredging activities for other, already listed, ESA-species (e.g. 
shortnose sturgeon and sea turtles). Given that Atlantic sturgeon do 
not have the same temporal and spatial distribution as these ESA-listed 
species, it is likely that Atlantic sturgeon takes occur during 
unobserved dredging operations.
    Dredging projects on the Kennebec River in the GOM DPS are known to 
have captured Atlantic sturgeon. Dredging has also been proposed for 
the Penobscot Harbor of the Penobscot River (ASSRT, 2007). Capture of 
Atlantic sturgeon is likely to occur if dredging takes place at times 
when Atlantic sturgeon are present in the area. NMFS can currently 
request, but cannot require, dredge operations to be modified to 
minimize capture and injury of Atlantic sturgeon.
    Within the NYB DPS, the commercial shipping channel of the Hudson 
River is maintained at a depth of 9.75 m (at mean low water) for nearly 
the entire length of the river to the Port of Albany. However, the 
section between Haverstraw Bay and Catskill (approximately rkm 122) is 
naturally deep and does not require dredging (D. Mann-Klager, FWS, 
pers. comm., 1998).
    The navigation channel in the Delaware River similarly undergoes 
maintenance dredging from the mouth of Delaware Bay to just north of 
Trenton, NJ (ASSRT, 2007). Seasonal restrictions on when this work can 
occur have been imposed by the Delaware River Fish and Wildlife 
Management Cooperative to reduce impacts from dredging on diadromous 
species (ASSRT, 2007). Nevertheless, dredge gear used in the Delaware 
is known to injure or kill Atlantic sturgeon (ASSRT, 2007). There are 
also new proposed dredge activities in the Delaware River. In 2006, 
Crown Landing, LLC, was approved by the Federal Energy Regulatory 
Commission (FERC) to construct and operate a liquefied natural gas 
(LNG) import terminal on the Delaware River near Logan, New Jersey (rkm 
126). The construction of the LNG terminal would require the hydraulic 
dredging of 1.24 million m\3\ in the first year of construction 
followed by maintenance dredging of 67,000-97,000 m\3\/year. Dredge 
spoil will be deposited in an upland disposal site, and dredging will 
be limited to the months of August through December. The dredging 
operations proposed for construction and maintenance of the LNG 
terminal would occur, in part, directly in suspected historical 
Atlantic sturgeon spawning habitat (Fox, 2006; ASSRT, 2007). However, 
construction of the terminal has not yet begun, and it is uncertain 
whether it will proceed since approval from the State of Delaware has 
not been secured (Examiner.com, 2009).
    Since completion of the SRT report, we have received information on 
the Delaware River Main Channel Deepening project, which calls for the 
deepening of the existing channel from 40 to 45 feet (12.2 to 13.7 
meters) from Philadelphia Harbor, PA, to the mouth of the Delaware Bay. 
This project will require dredging the channel with hydraulic and 
hopper dredges and blasting approximately 77,000 cubic yards (58,914 
cubic meters) of rock near Marcus Hook, PA. While the seasonal 
restrictions imposed by the Delaware River Fish and Wildlife Management 
Cooperative may help to reduce or prevent direct take of important 
resident fish species (primarily the federally endangered shortnose 
sturgeon and other species of diadromous fishes), there is still the 
potential for direct impacts of this project on Atlantic sturgeon as 
they may be found in the project area throughout the year. There is the 
potential for indirect effects as well, such as changes in hydrology of 
the river, which may affect possible spawning habitat (e.g., salt water 
intruding further into the river). The location of spawning habitat for 
Atlantic sturgeon in the Delaware River has not been confirmed (ASSRT, 
2007).
    For Atlantic sturgeon belonging to the CB DPS, the most significant 
impacts to spawning habitat likely occurred in 1843 and 1854 in the 
James River when granite outcropping consisting of large and small 
boulders was removed and the river was dredged to improve ship 
navigation (Holton and Walsh, 1995; Bushnoe et al., 2005). Similarly, 
rock was removed from Drewry's Island Channel in 1878 to improve 
navigation (Holton and Walsh, 1995). These granite outcroppings and 
boulder matrices are the types of habitats that are believed to be 
ideal spawning habitats for Atlantic sturgeon (Bushnoe et al., 2005). 
Based on commercial landings (Bushnoe et al., 2005), the James River 
likely supported the largest subpopulation in the Chesapeake Bay in the 
1800s.
    Dredging continues to pose a threat to Atlantic sturgeon in the 
James River. There are dredging projects underway to deepen and widen 
the shipping terminal near Richmond on the James River, and the river 
undergoes maintenance dredging on almost an annual basis to allow 
commercial ocean-going vessels to reach the Richmond terminal (C. 
Hager, VIMS, pers. comm., 2005; S. Powell, ACOE, pers. comm., 2009). 
Since 1998, six new permits have been issued for dredging within the 
James River, and an additional 24 maintenance projects have been 
approved (L. Gillingham, VMRC, pers. comm., 2005). The Commonwealth of 
Virginia does impose a dredging moratorium during the anadromous 
spawning season (C. Hager, VIMS, pers. comm., 2005). The ACOE has 
received a waiver to dredge during this moratorium in very limited 
circumstances such as to conduct a study to assess the effects of 
dredging on sturgeon (S. Powell and S. Cameron, ACOE, pers. comm., 
2009).

Turbines

    The placement of turbine structures to generate power in rivers 
used by Atlantic sturgeon could, potentially, damage or destroy bottom 
habitat. However, the more likely effect of turbines is injury and 
death of Atlantic sturgeon as a result of being struck by the turbine 
blades. Such takes have the potential to affect the range of Atlantic 
sturgeon if the takings contribute to the extirpation of a DPS.
    Seventeen hydrokinetic projects proposed for both the GOM (9) and 
NYB (8) DPSs have received preliminary permits from FERC, with many 
more projects being proposed. There are two tidal power projects 
currently in operation along the range of Atlantic sturgeon. The 
Annapolis River (Nova Scotia, Canada) tidal power plant, built in 1982, 
was constructed as a demonstration site for marine Straflo turbines and 
consists of a rock-filled dam housing the turbine and sluice gates (M. 
Dadswell, Arcadia University, pers. comm., 2006). The negative impacts 
of the Annapolis tidal turbine on Atlantic sturgeon (150-200 cm TL) 
appear to be great, as the probability of lethal strike from the 
turbine ranges between 40 and 80 percent (M. Dadswell, Arcadia 
University, pers. comm., 2006; ASSRT, 2007), and at least three 
severed, gravid females have been observed below the power plant 
(Dadswell and Rulifson, 1994). In

[[Page 61885]]

summer 2009, nine severed Atlantic sturgeon carcasses were documented 
on beaches near the Annapolis project (http://annapolisroyalheritage.blogspot.com/2009/09/atlantic-sturgeon.html). 
Although the cause of mortality could not be confirmed, the injuries 
are consistent with blade strikes from the tidal turbines. Since this 
power plant occurs within the marine range of Atlantic sturgeon that 
originate from the GOM, NYB, and CB DPSs, fish originating from these 
DPSs could also be struck and killed or injured. One marine turbine 
project is underway within the United States in the East River, New 
York (Angelo, 2005; Verdant Power webpage, 2009). Although no impacts 
to wildlife have been reported, the project is still in the early 
stages. Verdant Power recently completed Phase 2 of the project, which 
involved installation and operation of six full-scale turbines in an 
array at the project site in the East River (Verdant Power webpage, 
2009). Phase 3 of the project will entail placement of 30 turbines in 
the east branch of the river and additional turbines in the west branch 
if the company is able to acquire a license from FERC (Verdant Power 
webpage, 2009). The energy company, Verdant Power, has plans to expand 
the project to up to 300 turbines to be located within a 1-mile section 
of the river near Roosevelt Island (Angelo, 2005).

Water Quality

    The Northeast Coast region, which includes the coastal waters and 
watersheds of Connecticut, Delaware, Maine, Maryland, Massachusetts, 
New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, 
Vermont, and Virginia, is the most densely populated coastal region in 
the United States (EPA, 2008). Therefore, it is not surprising that 
water quality for the GOM, NYB, and CB DPSs continues to be an issue 
likely affecting Atlantic sturgeon despite many positive actions (e.g., 
implementation of the Clean Water Act). Contaminants, including toxic 
metals, polychlorinated aromatic hydrocarbons (PAHs), organophosphate 
and organochlorine pesticides, polychlorinated biphenyls (PCBs), and 
other chlorinated hydrocarbon compounds can have substantial 
deleterious effects on aquatic life. Effects from these elements and 
compounds on fish include production of acute lesions, growth 
retardation, and reproductive impairment (Cooper, 1989; Sinderman, 
1994). The coastal environment is also impacted by coastal development 
and urbanization that result in storm water discharges, non-point 
source pollution, and erosion. 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. The SRT considered all of 
this information as well as the second edition of the National Coastal 
Condition Report (EPA, 2004), and concluded that water quality posed a 
moderate to moderately low risk that the GOM, NYB, and CB DPSs were 
likely to become endangered within the foreseeable future. Since 
completion of the SRT report, the EPA has released the third National 
Coastal Condition Report (EPA, 2008). That report is considered here to 
aid in assessing the level of threat water quality poses to the GOM, 
NYB, and CB DPSs.
    Within the GOM DPS, water quality of its rivers and estuaries was 
severely degraded as a result of many activities, including 
agricultural and forestry practices, industrialization, and land 
development. As late as 1994, the Androscoggin River was still 
considered one of the most polluted rivers in the United States (EWG, 
2005; Lichter et al., 2006). However, water quality in the Androscoggin 
River has been improving (Lichter et al., 2006). Likewise, the 
Penobscot River went through a period of very poor water quality 
(Hatch, 1971; Davies and Tsomides, 1999; Courtemanch et al., 2009). 
Pollutants such as mercury and dioxin persist in the river, but dioxin 
levels in fish are showing improvement with a drop from 7.6 parts per 
trillion in 1984 to less than 0.1 parts per trillion in 2004 (MEDEP, 
2005). In addition, increasing numbers of shortnose sturgeon are being 
found in the river (G. Zydelwski, ME DMR, pers. comm., 2009). Shortnose 
sturgeon and Atlantic sturgeon are believed to have similar 
sensitivities to pollutants (Dwyer et al., 2000). Therefore, increasing 
numbers of shortnose sturgeon in the Penobscot River suggest that water 
quality in the river is also suitable for supporting Atlantic sturgeon.
    In 2003, the Merrimack River was the subject of a watershed 
assessment conducted by the ACOE and municipalities along the river 
(ASSRT, 2007). The study noted that the lower basin of the river was 
highly urbanized with high levels of point and non-point source 
pollution (USACOE, 2003; ASSRT, 2007). The study also noted impaired 
dissolved oxygen levels and pH levels (ASSRT, 2007). The Merrimack 
River watershed in New Hampshire was identified as a mercury hot spot 
within the region (Evers et al., 2007; ASSRT, 2007). However, despite 
these water quality assessment results, sampling studies indicate that 
the shortnose sturgeon population in the river has increased over the 
last decade. Likewise, anecdotal information indicates that more 
Atlantic sturgeon are using the mouth of the river now than in years 
past.
    Despite the persistence of contaminants in rivers and increasing 
land development, many rivers and watersheds within the range of the 
GOM DPS have demonstrated improvement in water quality (EPA, 2008). In 
general, the most recent (third edition) EPA Coastal Condition Report 
identified that water quality was good to fair for waters north of Cape 
Cod (EPA, 2008).
    Rivers and watersheds in the NYB DPS have been similarly affected 
by industrialization, agriculture, and urbanization that occurred since 
European colonization. Water quality in the Taunton River has slightly 
improved since 1970 (Taunton River Journal, 2006; ASSRT, 2007). 
However, the river still suffers from low dissolved oxygen 
concentrations in the summer and high ammonia-nitrogen levels (Taunton 
River Journal, 2006; ASSRT, 2007). Treated wastewater from several 
municipalities is added to the river daily, the majority of which is 
produced from a single facility in one city (ASSRT, 2007). There are 
currently no fish consumption advisories in effect for the Taunton 
River (ASSRT, 2007).
    Water quality on the Connecticut River has improved dramatically in 
the last 40 years (ASSRT, 2007). It is now swimmable and fishable with 
some downstream exceptions (T. Savoy, CTDEP, pers. comm., 2006). As a 
result of the operations of a manufactured gas plant that was located 
adjacent to the river, there are large, discrete coal tar deposits that 
occupy an estimated 32.5 acres (13.16 hectares) below the Holyoke Dam. 
Coal tar leachate has been suspected of impairing sturgeon reproductive 
success. Kocan et al. (1993, 1996) conducted a laboratory study to 
investigate the survival of shortnose sturgeon eggs and larvae exposed 
to PAHs, a by-product of coal distillation. Only 5 percent of sturgeon 
embryos and larvae survived after 18 days of exposure to Connecticut 
River coal tar (i.e., PAHs), demonstrating that contaminated sediment 
is toxic to shortnose sturgeon embryos and larvae under laboratory 
exposure conditions. A remediation project was initiated in 2002 to 
begin removing some of the coal tar deposits from the river. Between 
2002 and 2006, 11,714 cubic yards (8,962.5 cubic meters) of coal tar 
and associated sediments were removed. In

[[Page 61886]]

2006, information that was obtained through the removal process and 
through diver surveys confirmed that the extent of the deposits was 
much greater than initial estimates. Studies are being conducted to 
determine if the weathered, hard tar that is present in much of the 
area is less toxic and mobile than the soft tar and therefore, does not 
pose the same risk. According to the Massachusetts Department of 
Environmental Protection, a substantial number of borings were taken in 
2008 to identify locations and depths of submerged tar.
    Population expansion beginning in the early 1900s in the Hudson 
River valley increased sewage output to the river, and sewage 
decomposition produced several areas of inadequate oxygen (oxygen 
blocks) in the river. Best documented was the oxygen block present in 
the Albany pool, located north of the Atlantic sturgeon's spawning and 
nursery habitat (Kahnle et al., 1998). Other oxygen blocks occurred at 
certain times in the southern stretch of the river from the Tappan Zee 
Bridge south through New York Harbor (Brosnan and O'Shea, 1997; Kahnle 
et al., 1998). Improvements to sewage treatment eliminated the problem 
near Albany by the late 1970s and near New York City by the middle to 
late 1980s (Kahnle et al., 1998). PCB levels were high throughout much 
of the river over the last several decades. In recent years, PCB 
concentrations have declined to acceptable levels according to EPA 
guidelines, but continual monitoring is needed to document the fate of 
PCB contamination in the river (Sloan et al., 2005). The shortnose 
sturgeon population in the Hudson River has increased significantly 
(Bain et al., 2007) in the last several decades, suggesting that these 
improvements in water quality have resulted in more suitable habitat 
conditions for the species and, likely, better habitat conditions for 
Atlantic sturgeon in the Hudson River as well.
    Until recently, poor water quality has been a significant factor 
affecting fish utilizing the upper tidal portion of the Delaware River 
estuary. As recent as the early 1970s, dissolved oxygen levels between 
Wilmington and Philadelphia were routinely below levels that could 
support aquatic life from late spring to early fall (ASSRT, 2007). 
Water quality has improved, however, to the extent that dissolved 
oxygen levels have not dropped below the state's minimum standards at 
any point during the year since 1990 (R. Green, Delaware DNREC, pers. 
comm., 1998). As has been observed in other rivers (e.g., Penobscot and 
Hudson Rivers), the biological status of shortnose sturgeon in the 
Delaware River appears to be improving and suggests that water quality 
has improved for Atlantic sturgeon that occur in the Delaware River as 
well. For example, a portion of the Roebling-Trenton stretch of the 
river is an EPA Superfund site due to the presence of the Roebling 
Steel plant and contamination associated with plant operations; the EPA 
has been considering ways to remove or cap the contamination in the 
river caused by the plant operations.
    The most recent (third edition) EPA Coastal Condition Report 
identified that water quality was fair overall for waters south of Cape 
Cod through Delaware (EPA, 2008). However, sampled sites in 
Massachusetts and Rhode Island were generally scored as good while 
waters from Connecticut to Delaware received fair and poor ratings 
(EPA, 2008). In particular, the report noted that most of the Northeast 
Coast sites with poor water quality ratings were concentrated in a few 
estuarine systems, including New York/New Jersey Harbor, some 
tributaries of the Delaware Bay, and the Delaware River (EPA, 2008).
    With respect to the CB DPS, the period of Atlantic sturgeon 
population decline and low abundance in the Chesapeake Bay corresponds 
to a period of poor water quality caused by increased nutrient loading 
and increased frequency of hypoxia (Officer et al., 1984; Mackiernan, 
1987; Kemp et al., 1992; Cooper and Brush, 1993). The Bay is especially 
vulnerable to the effects of nutrients due to its large surface area to 
volume ratio, relatively low exchange rates, and strong vertical 
stratification during the spring and summer months (ASSRT, 2007). The 
EPAs Third Coastal Condition Report identified the water quality for 
the Chesapeake Bay and immediate vicinity (to the Virginia--North 
Carolina border) as fair to poor (EPA, 2008). In particular, the 
western and northern tributaries of the Chesapeake Bay were rated as 
poor (EPA, 2008). The extensive watersheds of this historically 
unglaciated area funnel nutrients, sediment, and organic material into 
secluded, poorly flushed estuaries that are more susceptible to 
eutrophication (EPA, 2008).
    Using a multivariable bioenergetics and survival model, Niklitschek 
and Secor (2005) demonstrated that within the Chesapeake Bay, a 
combination of low dissolved oxygen, water temperature, and salinity 
restricts available Atlantic sturgeon habitat to 0-35 percent of the 
Bay's modeled surface area during the summer. However, they further 
demonstrated that achieving the EPA's new dissolved oxygen criteria for 
the Chesapeake Bay would increase Atlantic sturgeon available habitat 
by 13 percent per year (Niklitschek and Secor, 2005).
    In addition to water quality, one of the limiting habitat 
requirements for the CB DPS of Atlantic sturgeon may be the 
availability of clean, hard substrate for attachment of demersal, 
adhesive eggs (Bushnoe et al., 2005; C. Hager, VIMS, pers. comm., 
2005). In the Chesapeake Bay watershed, 18th and 19th century 
agricultural clear cutting (Miller, 1986) contributed large sediment 
loads that presumably have buried or reduced most sturgeon spawning 
habitats (reviewed in Bushnoe et al., 2005).
    Despite these water quality and sediment issues, Atlantic sturgeon 
that were stocked in the Bay had very high survival rates, suggesting 
that the sturgeon are able to adjust to conditions in the Bay or move 
out of the Bay (e.g., into the rivers draining into the Bay) where 
water quality is better. In addition, Atlantic sturgeon that originate 
from other DPSs are often caught in the Bay and documented in the 
reward program; indicating that the current water quality is not 
preventing fish from moving into, and foraging in, the Bay.

Climate Change

    Although the impacts of global climate change are uncertain, 
researchers anticipate that the frequency and intensity of droughts and 
floods will change across the nation (CBS, 2006). The latest report 
from the Intergovernmental Panel on Climate Change (IPCC) predicts that 
higher water temperatures and changes in extreme weather events, 
including floods and droughts, are projected to affect water quality 
and exacerbate many forms of water pollution, including sediments, 
nutrients, dissolved organic carbon, pathogens, pesticides, and salt, 
as well as thermal pollution, with possible negative impacts on 
ecosystems, human health, and water system reliability and operating 
costs. The resulting changes in water quality (temperature, salinity, 
dissolved oxygen, contaminants, etc.) in rivers and coastal waters 
inhabited by Atlantic sturgeon will likely affect those subpopulations. 
Effects are expected to be more severe for those subpopulations that 
occur at the southern extreme of the sturgeon's range, and in areas 
that are already subject to poor water quality as a result of 
eutrophication. In a simulation of the effects of water temperature on 
available Atlantic sturgeon habitat, Niklitschek and Secor (2005) found 
that a 1 [deg]C increase of water temperature in the Chesapeake

[[Page 61887]]

Bay would reduce available sturgeon habitat by 65 percent.
    In summary, with the exception of the Merrimack River, dams do not 
appear to limit Atlantic sturgeon access to spawning habitat. However, 
it should be noted that accessibility does not equate to functionality. 
Therefore, while historical spawning habitat may still be available, 
some of the habitat may no longer be suitable spawning habitat. In 
particular, water quality, while showing signs of improvement, 
continues to rate only fair to poor in areas of the NYB DPS and CB DPS. 
Dredging is known to have removed structures in the James River that 
are typically associated with Atlantic sturgeon spawning habitat. 
Nutrient loading and eutrophication of the Chesapeake Bay is expected 
to get worse with temperature changes and other effects associated with 
climate change. The SRT concluded that, cumulatively, dams, dredging, 
turbines, and water quality posed a moderate risk to the GOM, NYB, and 
CB DPSs. Of the threats to habitat that were considered, water quality 
was of greatest concern in terms of its contribution to the risk of 
endangerment for each DPS, overall. Based on the information provided 
by the SRT as well as information on climate change that was not 
considered by the SRT, and new information from the EPA on water 
quality, we concur that water quality is the greatest of the threats 
affecting the habitat or range of the GOM, NYB, and CB DPSs.

Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    As previously described, there is no directed commercial or 
recreational fishery for Atlantic sturgeon in the U.S. Although capture 
of Atlantic sturgeon on recreational fishing gear (e.g., rod and reel) 
has occasionally occurred (ASSRT, 2007; P. Linthicum, pers. comm.), in 
general, recreational fishing gear is not conducive to catching 
Atlantic sturgeon.
    Canadian fisheries for Atlantic sturgeon occur in the Saint 
Lawrence and Saint John Rivers. Since Atlantic sturgeon of U.S. origin 
are not expected to occur in areas of the Saint Lawrence and Saint John 
where the fisheries occur, the Canadian commercial fishery for Atlantic 
sturgeon is unlikely to capture sturgeon of U.S. origin.
    The available information supports that the GOM, NYB, and CB DPSs 
are not overutilized as a result of educational or scientific purposes. 
There is no known use of Atlantic sturgeon for educational purposes 
other than, possibly, limited display in commercial aquaria. Atlantic 
sturgeon are the subject of scientific research in the wild and in 
hatcheries, and may be incidentally caught during research for other 
species such as shortnose sturgeon or assessment of commercial fish 
stocks. The SRT (2007) reviewed recent and ongoing research studies 
(from approximately 1988 to 2006) for Atlantic sturgeon in NMFS' 
Northeast Region. Overall, hundreds of fish have been captured and 
released and less than 10 mortalities have occurred (ASSRT, 2007). 
Scientific research of ESA-listed species such as shortnose sturgeon 
must comply with the permit requirements of the ESA, including measures 
to minimize the likelihood of injury and death (e.g., short tow times 
or soak times for collection gear, handling protocols). These measures 
also minimize the likelihood of harm to Atlantic sturgeon when they are 
also present. Trawl surveys to assess the status of commercial fish 
stocks occur throughout the Northeast Region. The surveys typically use 
short tow times that help to minimize mortality and injuries. Atlantic 
sturgeon have been caught during such research operations, but there 
have been no mortalities and all fish were released in good condition 
(i.e., no apparent injuries) (B. Kramer, NEFSC, pers. comm., 2006).
    While directed fisheries for Atlantic sturgeon are prohibited in 
U.S. waters, Atlantic sturgeon are incidentally caught in other U.S. 
fisheries. The SRT reviewed information on the commercial bycatch of 
Atlantic sturgeon in Northeast waters from: (a) Estimates based on NMFS 
sea sampling/observer data (Stein et al., 2004); (b) data collected as 
part of Delaware's tagging studies (Shirey et al., 1997); and (c) 
recapture data reported in the USFWS Atlantic Coast Sturgeon Tagging 
Database (Eyler et al., 2004). Additional, new information on Atlantic 
sturgeon bycatch in U.S. sink gillnet and otter trawl fisheries has 
become available since completion of the SRT report (ASMFC TC, 2007). 
At the request of the ASMFC, NMFS' Northeast Fisheries Science Center 
estimated the total bycatch of Atlantic sturgeon in sink gillnet and 
otter trawl gear based on observer data collected on a portion of 
commercial fishing trips from Cape Hatteras, NC, through Maine for 
2001-2006 (ASMFC TC, 2007). For sink gillnet gear, Atlantic sturgeon 
bycatch ranged between 2,752 and 7,904 sturgeon annually, averaging 
about 5,000 sturgeon per year (ASMFC TC, 2007). Atlantic sturgeon 
bycatch in otter trawl gear similarly ranged between 2,167 and 7,210 
sturgeon with an average of about 3,800 fish per year (ASMFC TC, 2007). 
However, bycatch mortality was markedly different between the two gear 
types. For sink gillnet fisheries, the estimated annual mortality 
ranged from 352 to 1,286 Atlantic sturgeon, with an average mortality 
of 649 sturgeon per year, or 13.8 percent of the annual Atlantic 
sturgeon bycatch in sink gillnet gear (ASMFC TC, 2007). The total 
number of Atlantic sturgeon killed in otter trawl gear could not be 
estimated because of the low number of observed mortalities, indicating 
a low mortality rate (ASMFC TC, 2007).
    Approximately 15 to 19 percent of observed Atlantic sturgeon 
bycatch in sink gillnet and otter trawl gear in 2001 to 2006 occurred 
in coastal marine waters north of Chatham, MA (ASMFC TC, 2007). 
However, since Atlantic sturgeon of different DPSs mix in the marine 
environment, it is likely that sturgeon other than those belonging to 
the GOM DPS were caught. Likewise, sturgeon that originate from the GOM 
DPS are at risk of capture in sink gillnet and otter trawl gear 
throughout the marine range of the species.
    In addition to fisheries occurring in coastal waters, there are 
limited gill net fisheries for menhaden, alewives, blueback herring, 
sea herring, and mackerel in the estuarial complex of the Kennebec and 
Androscoggin Rivers (ASSRT, 2007). State regulations prohibit the use 
of purse, drag, and stop seines, and gill nets with greater than 87.5 
mm stretched mesh (ASSRT, 2007). Fixed or anchored nets must be tended 
continuously and hauled in and emptied every 2 hours (ASSRT, 2007). 
There has been no reported or observed bycatch of Atlantic sturgeon in 
these fisheries.
    Approximately 39 to 55 percent of observed Atlantic sturgeon 
bycatch in sink gillnet and otter trawl gear for 2001 to 2006 occurred 
in coastal marine waters south of Chatham, MA and north of the 
Delaware-Maryland border (ASMFC TC, 2007). As described above, since 
Atlantic sturgeon of different DPSs mix in the marine environment, it 
is likely that sturgeon other than those belonging to the NYB DPS were 
caught in this area. Genetic analyses of tissue samples from captured 
fish have shown that approximately 12 percent of the fish captured in 
the New York Bight did not belong to the NYB DPS (T. King, unpublished, 
2007). Likewise, sturgeon that originate from the NYB DPS are at risk 
of capture in sink gillnet and otter trawl gear throughout the marine 
range of the species. Genetic analyses of samples from Atlantic 
sturgeon caught in Mid-Atlantic sink gillnet gear revealed that the 
majority of fish

[[Page 61888]]

originated from the Hudson River (Waldman et al., 1996a; Secor, 2007).
    Within the riverine range of the NYB DPS, the use of gillnet gear 
in the Taunton River, MA, is restricted to nets of no more than 100 
feet in length (2.54 m) and nets must be tended at all times (ASSRT, 
2007). No overnight sets are allowed (K. Creighton, MA FEW, 2006; 
ASSRT, 2007). Connecticut imposed a commercial harvest moratorium for 
Atlantic sturgeon in 1997 (ASSRT, 2007). However, bycatch is known to 
take place in the commercial shad fishery that operates in the lower 
Connecticut River from April to June in large mesh (14 cm minimum 
stretched mesh) gill nets (ASSRT, 2007). Likewise, New York implemented 
a harvest moratorium for Atlantic sturgeon in 1996, but Atlantic 
sturgeon bycatch occurs in a shad gill net fishery on the Hudson River 
(ASSRT, 2007). However, New York State Department of Environmental 
Conservation (NY DEC) recently proposed to close all American shad 
fisheries in the Hudson River due to poor stock condition. Regulations 
to close the fisheries for shad are expected to be implemented by 
spring of 2010, and would effectively eliminate bycatch of Atlantic 
sturgeon (K. Hattala, NY DEC, pers. comm., 2009).
    Several fisheries using gillnet gear occur in the Delaware Bay, 
including the striped bass, shad, white perch, Atlantic menhaden, and 
weakfish fisheries (ASSRT, 2007). The majority of these operate in 
March and April; bycatch mortality of Atlantic sturgeon during this 
period is typically low (C. Shirey, DNREC, pers. comm., 2005). For 
example, of the estimated 85 to 99 Atlantic sturgeon incidentally 
captured in the Delaware Bay anchored gillnet fisheries for 2002 
through 2003, none of the captures resulted in mortality (ASMFC 
Atlantic Sturgeon Plan Review Team Report, 2004, 2005).
    With respect to the CB DPS, the NEFSC analysis indicated that 
coastal waters south of the Chesapeake Bay to Cape Hatteras, NC, had 
the second highest number of observed Atlantic sturgeon captures in 
sink gillnet gear for 2001-2006 (ASMFC TC, 2007). While it is likely 
that the captured sturgeon originated from more than one DPS (Waldman 
et al., 1996a; Secor, 2007), the data suggest that fisheries resulting 
in high levels of Atlantic sturgeon bycatch occur in close proximity to 
waters used by sturgeon belonging to the CB DPS. Interviews with local 
fishermen in 2007 indicated that a gillnet fishery for dogfish was 
known to incidentally catch sturgeon, and that fishery occurred off 
Chincoteague Island, VA, where more than 30 dead Atlantic sturgeon were 
found (Virginia Marine Police and Virginia Marine Resources Commission, 
pers. comm.). The spiny dogfish fishery is managed under a Federal FMP 
as well as an ASMFC interstate FMP. However, access to the fishery is 
not limited, and directed effort in the fishery is expected to increase 
as stock rebuilding objectives are met (ASMFC, 2009). A monkfish 
fishery using large mesh gillnet gear also occurs in Federal waters off 
Virginia as well as other Mid-Atlantic and New England states. Atlantic 
sturgeon entanglements in gear used in the monkfish fishery have been 
observed in Mid-Atlantic and New England waters (ASMFC, 2007).
    In addition to fisheries occurring in marine waters, numerous 
fisheries operate throughout the Chesapeake Bay (ASSRT, 2007). Juvenile 
and subadult Atlantic sturgeon are routinely taken as bycatch 
throughout the Chesapeake Bay in a variety of fishing gears (ASSRT, 
2007). The mortality of Atlantic sturgeon bycatch in most of these 
fisheries is unknown, although low rates of bycatch mortality were 
reported for the striped bass gill net fishery and the shad fishery 
within the Bay (Hager, 2006). Of the hundreds of sturgeon held for 
examination in the Maryland and Virginia reward programs, only a few 
fish were determined to be in poor physical condition, although it is 
important to note that the program was designed to examine live 
specimens for the reward to be granted (J. Skjeveland and A. Spells, 
FWS, pers. comm., 1998).
    In summary, overutilization of Atlantic sturgeon for commercial 
purposes was likely the primary factor in the historical decline of the 
GOM, NYB, and CB DPSs. A moratorium on the possession and retention of 
Atlantic sturgeon for the past 10 years has effectively terminated any 
directed harvest of Atlantic sturgeon. However, bycatch in Federal and 
state regulated fisheries continues to occur. Atlantic sturgeon 
populations can withstand only low rates of anthropogenic (e.g., 
fishing, bycatch) mortality (ASMFC TC, 2007). Kahnle et al. (2007) 
estimated that sustainable fishing rates on adult Atlantic sturgeon are 
5 percent per year, and sustainable fishing rates for sub-adults are 
lower still (Boreman, 1997; ASMFC, 1998). Thus, the ASMFC TC (2007) 
concluded that even small rates of bycatch mortality (<5 percent) on 
sturgeon subpopulations could retard or curtail recovery. The best 
available information supports that bycatch of Atlantic sturgeon in 
Federal and state regulated fisheries acts as a significant threat on 
the GOM, NYB, and CB DPSs because it results in direct mortality. 
Fisheries known to incidentally catch Atlantic sturgeon occur 
throughout the marine range of the species and in some riverine waters 
as well. Therefore, adult and subadult age classes of each DPS are at 
risk of injury or death resulting from entanglement and/or capture in 
fishing gear wherever they occur.

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 TL (Gadomski and 
Parsley, 2005; ASSRT, 2007). Documented predators of sturgeon species 
(Acipenser sp.), in general, include sea lampreys, gar, striped bass, 
common carp, northern pikeminnow, channel catfish, smallmouth bass, 
walleye, fallfish, grey seal, and sea lion (Scott and Crossman, 1973; 
Dadswell et al., 1984; Miller and Beckman, 1996; Kynard and Horgan, 
2002; Gadomski and Parsley, 2005; Fernandes, 2006; Wurfel and Norman, 
2006). Seal predation on shortnose sturgeon in the Penobscot River has 
been documented (Fernandes, 2008). Seven shortnose sturgeon carcasses 
found in the Kennebec River in August 2009 also bore wounds consistent 
with seal predation (A. Lictenwalner, UME, pers. comm., 2009). Although 
seal predation of Atlantic sturgeon has not been documented, Atlantic 
sturgeon that are of comparable size to shortnose (e.g., subadult 
Atlantic sturgeon) may also be susceptible to seal predation.
    The presence of introduced flathead catfish has been confirmed in 
the Delaware and Susquehanna River systems of the NYB and CB DPSs, 
respectively (Horwitz et al., 2004; Brown et al., 2005). However, there 
are no indications that the presence of flathead catfish in the Cape 
Fear River, NC, and Altamaha River, GA (where flatheads have been 
present for many years) is negatively impacting Atlantic sturgeon in 
those rivers (ASSRT, 2007).
    Disease organisms commonly occur among wild fish populations, but 
under favorable environmental conditions, these organisms are not 
expected to cause population-threatening epidemics. There are no known 
diseases currently affecting any of the Atlantic sturgeon DPSs. A die-
off of sturgeon, 13 shortnose and two Atlantic sturgeon, was reported 
for Sagadahoc Bay, ME, in July 2009, at the same time as a red tide 
event for the region. The dinoflagellate associated with the red tide 
event, Alexandrium fundyense, is known to produce saxitoxin, which can 
cause paralytic shellfish poisoning when consumed in sufficient 
quantity.

[[Page 61889]]

Stomach content analysis from the necropsied sturgeon revealed 
saxitoxin levels of several hundred nanograms per gram (S. Fire, NOAA, 
pers. comm., 2009). However, saxitoxin cannot be confirmed as the cause 
of death of the sturgeon, given the lack of information on saxitoxin 
presence in sturgeon tissues.
    There is concern that non-indigenous sturgeon pathogens could be 
introduced to wild Atlantic sturgeon, 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 the 
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 (J. Coll and J. Thoesen, USFWS, pers. comm., 
1998).
    Disease and predation are not presently significant threats on the 
GOM, NYB, or CB DPSs. While there is new evidence of seal predation on 
shortnose sturgeon in the Penobscot and Kennebec Rivers of the GOM DPS 
(Fernandes, 2008; A. Lictenwalner, UME, pers. comm., 2009), the number 
of mortalities is believed to be low and thus, this is a localized 
threat affecting a small number of fish. Likewise, we would expect that 
any seal predation of Atlantic sturgeon, if it is occurring, would also 
be low, given that Atlantic sturgeon spend less time in the rivers/
estuaries relative to shortnose sturgeon. There is also new evidence of 
the presence of saxitoxin in sturgeon tissues. However, saxitoxin 
presence cannot yet be associated as a cause of injury or mortality for 
shortnose or Atlantic sturgeon.
    Overall, the SRT concluded that there was a ``low risk'' that the 
GOM, NYB, or CB DPS was likely to become endangered within the 
foreseeable future as a result of disease or predation. Although there 
is some new information regarding disease and predation of shortnose 
sturgeon for waters within the range of the GOM DPS of Atlantic 
sturgeon, the new information does not support an increased risk that 
the GOM DPS of Atlantic sturgeon is likely to become endangered within 
the foreseeable future as a result of disease or predation.

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), and those that impact Atlantic sturgeon the 
most are highlighted here.
    Current regulatory mechanisms have effectively removed threats from 
legal, directed harvest in the United States. As previously described, 
the ASMFC manages Atlantic sturgeon through an interstate fisheries 
management plan that was developed in 1990 (Taub, 1990). The moratorium 
prohibiting directed catch of Atlantic sturgeon was developed as 
Amendment 1 to the FMP. The Atlantic Coastal Fisheries Cooperative 
Management Act (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 in the EEZ, in the 
absence of an approved Magnuson-Stevens FMP, that are compatible to 
ASMFC FMPs. It was under this authority that, in 1999, NMFS implemented 
regulations that prohibit the retention and landing of Atlantic 
sturgeon bycatch from federally regulated fisheries. NMFS has 
discretion over the management of federally regulated fisheries and is 
required to address bycatch for each federally regulated fishery. 
Therefore, while there are currently no fishery specific regulations in 
place that address Atlantic sturgeon bycatch, NMFS has the authority 
and discretion to implement such measures, and has previously used its 
authority to implement measures to reduce bycatch of protected species 
in federally-regulated fisheries.
    Some fisheries that occur within state waters are also known or 
suspected of taking Atlantic sturgeon as bycatch. Maine's regulations 
prohibit the use of purse, drag, and stop seines, and gill nets with 
greater than 87.5 mm stretched mesh (ASSRT, 2007). Fixed or anchored 
nets have to be tended continuously and hauled in and emptied every 2 
hours (ASSRT, 2007). As described above, there has been no reported or 
observed bycatch of Atlantic sturgeon in the limited gill net fisheries 
for menhaden, alewives, blueback herring, sea herring, and mackerel in 
the estuarial complex of the Kennebec and Androscoggin Rivers (ASSRT, 
2007). However, the level of observer coverage or reporting effort is 
unknown.
    Atlantic sturgeon are also known to be taken as bycatch in the 
Connecticut and Hudson River shad fisheries (ASSRT, 2007). Current 
Connecticut regulations appear to be inadequate for addressing this 
bycatch. In New York, however, the NY DEC closed all shad fisheries in 
the Hudson River effective March 17, 2010 (NY DEC press release, March 
17, 2010), thus, eliminating Atlantic sturgeon bycatch associated with 
shad fisheries.
    Gillnet fisheries for numerous fish species occur in the Chesapeake 
Bay. Low rates of sturgeon bycatch mortality were reported for the 
striped bass gill net fishery and the shad staked gill net fishery 
(Hager, 2006; ASSRT, 2007), although estimates of bycatch in these 
fisheries as well as other fisheries in the Bay are not available. 
Since completion of the status review report, Virginia has closed the 
directed fishery for American shad to allow rebuilding of the stock. 
Virginia also has various time and gear restrictions for the use of 
gillnet gear in its tidal waters, including prohibitions on the use of 
staked or anchored gillnet gear in portions of the James and Rappannock 
Rivers from April 1 through May 31 (VA MRC Summary of Regulations, 
2009), that are likely to benefit Atlantic sturgeon by reducing the 
likelihood of sturgeon bycatch. Similarly, regulations implemented by 
NMFS (69 FR 24997, May 5, 2004; 71 FR 36024, June 23, 2006) to reduce 
sea turtle interactions with pound net gear in the Bay and portions of 
the surrounding rivers (e.g., James, York, and Rappahannock Rivers) 
likely reduce the chance that Atlantic sturgeon will be caught in the 
gear.
    Due to existing state and Federal laws, water quality and other 
habitat conditions have improved in many rivers (EPA, 2008). As 
described above, dredging is a threat for the GOM, NYB, and CB DPSs of 
Atlantic sturgeon. Currently, there are no specific regulations 
requiring action(s) to reduce effects of dredging on Atlantic sturgeon. 
However, NMFS has the authority and discretion to implement such 
measures or require modification of dredging activities if Atlantic 
sturgeon are listed under the ESA.
    In summary, State and Federal agencies are actively employing a 
variety of legal authorities to implement proactive restoration 
activities for Atlantic sturgeon, and coordination of these efforts is 
being furnished through the ASMFC. Most states within the

[[Page 61890]]

riverine and estuarine range of the GOM, NYB, and CB DPSs of Atlantic 
sturgeon have regulations for their inshore gillnet fisheries that 
reduce the likelihood of Atlantic sturgeon bycatch mortality in the 
nets. NMFS has the authority and discretion to implement measures 
necessary to reduce bycatch of Atlantic sturgeon in federally regulated 
fisheries, and we expect that such measures would yield significant 
benefits for Atlantic sturgeon. However, NMFS has not implemented any 
bycatch reduction measures specifically for Atlantic sturgeon, and 
existing bycatch reduction measures are inadequate for reducing bycatch 
of Atlantic sturgeon in federally regulated fisheries. NMFS also has 
the authority and discretion to require measures to reduce the effects 
of in-water projects (e.g., dredging, tidal turbine projects) on ESA-
listed species. Such measures afford some benefit to Atlantic sturgeon 
at times and in areas where the ESA-listed species is also present. 
However, currently, NMFS does not have the authority or discretion to 
require action to reduce the effects of in-water projects specifically 
for Atlantic sturgeon. Therefore, Atlantic sturgeon are afforded no 
protection from the effects of in-water projects if an ESA-listed 
species is not present. There are no measures to reduce or minimize 
vessel strikes (discussed in Other Natural or Manmade Factors Affecting 
the Species' Continued Existence section below) of Atlantic sturgeon, 
and we currently have limited authority and discretion by which to 
regulate vessel activities in areas where Atlantic sturgeon occur.

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, vessel strikes, and 
artificial propagation. Along the range of Atlantic sturgeon, most, if 
not all, subpopulations are at risk of possible entrainment or 
impingement in water withdrawal intakes for commercial uses, municipal 
water supply facilities, and agricultural irrigation intakes. Based on 
the behavior of captive larval Atlantic sturgeon (Kynard and Horgan, 
2002), Atlantic sturgeon larvae may be able to avoid intake structures 
in most cases, since migration is active and occurs near the bottom. 
Effluence from power plant facilities also has the potential to affect 
the Atlantic sturgeon DPSs. The release of heated water can benefit 
sturgeon by providing a thermal refuge during the winter months, but 
drastic changes in water temperature have the potential to cause 
mortality. To date, there have been no known Atlantic sturgeon 
mortalities as a result of effluent discharge of heated water.
    Two surveys have been conducted that provide information on the 
impacts of water withdrawal on Atlantic sturgeon originating from the 
NYB DPS: (1) Hudson River Utility Surveys, and (2) Delaware River Salem 
Power Plant survey. The Hudson River has six power plants located 
between rkm 34-74, which overlap with known nursery grounds for 
Atlantic sturgeon larvae and early juveniles located at rkm 43-100. Of 
the six power plants located in this area, the Danskammer, Roseton, 
Lovett, and Indian Point pose the greatest risk to Atlantic sturgeon, 
as the Bowline Point power plant is located farther downriver and 
withdraws water from a collection pond. Intensive surveys (24 hr/day, 4 
to 7 days/week, and 10-12 weeks/year during the spring) conducted from 
1972-1998 examining entrainment and impingement of fish species 
reported only 8 entrained sturgeon (larvae) and 63 impinged shortnose 
sturgeon (majority 200-700 mm) (Applied Science Associates, 1999). 
Entrained sturgeon were documented only at the Danskammer Point Plant 
where four shortnose larvae and four unidentified sturgeon yolk sac 
larvae were observed during the spring in 1983 and 1984. Impingement of 
sturgeon occurred most often at the Danskammer Point Plant, averaging 
4.2-5.2 impinged fish per year, followed by Indian Point (1.5-2.3 fish/
year), Roseton (1.5-1.8 fish/year), Bowline Point (0-0.9 fish/year) and 
Lovett Point (0 fish per year). During the period of 1989 to 1996, five 
shortnose sturgeon were impinged (0.6/year) from the Roseton and 
Danskammer plants. However, since 2000 when operational and physical 
changes were made at these two plants, no impinged Atlantic or 
shortnose sturgeon have been observed. Bowline Point and Lovett 
reported zero impingements during this period. Sampling did not occur 
at Indian Point after 1990 (Shortnose Sturgeon Status Review, in 
draft).
    The Salem Nuclear Generating Station located on the Delaware River 
also has the potential to take sturgeon species via impingement or 
entrainment. The trash racks at the Station are required to be 
inspected every 2 hours from June 1 through October 15. The racks are 
cleaned three times per week from May 1 to May 31 and October 16 
through November 15, and are required to be cleaned daily from June 1 
to October 15. Observations are made specifically for sturgeon species 
during this time. During the remaining months, the trash racks are 
inspected daily for debris load and cleaned as necessary. From 1978 to 
2007, 18 shortnose sturgeon were collected at the cooling water system 
intake. These fish were all juveniles greater than 400 mm TL. While 
shortnose sturgeon have been observed at the intakes at the Station, no 
Atlantic sturgeon have been observed.
    Vessel strikes of Atlantic sturgeon have been documented in 
particular areas. Atlantic sturgeon that occur in locations that 
support large ports and have relatively narrow waterways seem to be 
more prone to vessel strikes (e.g., Delaware and James Rivers). Twenty-
nine mortalities believed to be the result of vessel strikes were 
documented in the Delaware River from 2004 to 2008 (Kahnle et al., 
2005; Murphy, 2006). At least 13 of these fish were large adults. Given 
the time of year in which the fish were observed (predominantly May 
through July, with two in August), it is likely that many of the adults 
were migrating through the river to the spawning grounds. Based on the 
external injuries observed, it is suspected that these strikes are from 
ocean going vessels and not smaller boats, although at least one boater 
reported hitting a large sturgeon with his small craft (C. Shirey, 
DNREC, pers. comm., 2005). Recreational vessels are known to have 
struck and killed shortnose sturgeon in the Kennebec River (G. 
Wipplehauser, ME DMR, pers. comm., 2009). Therefore, it is likely that 
Atlantic sturgeon can also suffer mortal injuries when struck by 
recreational vessels.
    In the James River, 11 Atlantic sturgeon were reported to have been 
struck by vessels from 2005 through 2007 (A. Spells, FWS, pers. comm., 
2007). Of the six mortalities, two were mature males (approximate 
lengths of 154-185 cm fork length (FL)); the other four carcasses were 
in an advanced state of decay and could not be sexed. However, each of 
the four was at least as large as the two mature males with one about 
215 cm long and another appearing to have been much larger (only a 
section of the larger fish was retrieved as it had been severed more 
than once). The propeller marks present on the six fish examined 
indicated that the wounds were inflicted by both large and small 
vessels (A. Spells, FWS, pers. comm., 2007). One fish exceeding 154 cm 
in length had been cut completely in two. Other sources suggest an even 
higher rate of interaction with at least 16 Atlantic sturgeon 
mortalities reported for a short reach of the James River during 2007-
2008 (Balazik, unpublished, in Richardson et al., 2009).

[[Page 61891]]

    Artificial propagation of Atlantic sturgeon for use in restoration 
of extirpated subpopulations or recovery of severely depleted wild 
subpopulations has the potential to be both a threat to the species and 
a tool for recovery. In 1991, the FWS Northeast Fisheries Center (NEFC) 
in Lamar, Pennsylvania began a program to capture, transport, spawn, 
and culture Atlantic sturgeon. This program was in response to 
recommendations by the ASMFC in the Atlantic Sturgeon FMP (Taub, 1990) 
and Special Report No. 22: Recommendation Concerning the Culture and 
Stocking of Atlantic Sturgeon (ASMFC, 1992). The first successful spawn 
at NEFC was achieved in 1993 using ripe Hudson River broodstock 
captured by commercial fishermen. Approximately 175 individuals from 
that year class and others are currently being maintained at NEFC for 
use in a future broodstock. Subsequent propagation attempts in 1994, 
1995, 1996, and 1998 were also successful with as many as 160,000 fry 
being hatched in one year. The work at Lamar resulted in the 
publication of the Culture Manual for the Atlantic sturgeon (Mohler, 
2004). Since NEFC's first successful spawning in 1993, many requests 
have been made for excess progeny both inside and outside of the 
Department of the Interior. These requests were filled only under the 
condition that a study plan be submitted to NEFC for review by the 
Center Director and biologists. Study plans were required to include 
provisions that escapement of cultured sturgeon into the wild would be 
prevented except where experimental stockings were conducted consistent 
with Federal and state regulations, and they should include a rigorous 
evaluation component. Accordingly, over 29,000 artificially propagated 
juvenile sturgeon have been shipped to 20 different organizations 
including Federal and state agencies, universities, public aquaria, and 
independent researchers.
    In 1996, the Maryland Department of Natural Resources (MD DNR), 
FWS, and the University of Maryland-Chesapeake Biological Laboratory 
stocked the Nanticoke River with 3,300 hatchery-origin juveniles that 
were obtained from the NEFC. The stocked fish demonstrated good growth 
and survivability with a 14 percent recapture rate over several years 
(MD DNR, 2007). MD DNR then began to rear sturgeon with the intention 
of developing a captive spawning population for use in restoring 
subpopulations in Maryland. The MD DNR program has been developed using 
the culture and stocking guidance provided by ASMFC (2006). 
Approximately 50 fish are currently maintained in the captive brood 
population.
    In summary, vessel strikes are a significant threat affecting the 
NYB and CB DPSs. Currently, no state or Federal regulations exist to 
reduce or minimize the likelihood of vessel strikes for Atlantic 
sturgeon. Artificial propagation and impingement/entrainment of 
Atlantic sturgeon have a low impact on the GOM, NYB, and CB DPSs and 
are, therefore, minor threats to each of the three DPSs.

Current Protective Efforts

    Current conservation efforts underway to protect and recover 
Atlantic sturgeon must be evaluated according to the Policy for 
Evaluation of Conservation Efforts (PECE) and pursuant to section 
4(b)(1)(A) of the ESA. 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 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 (68 FR 15101; March 28, 2003). The purpose of 
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 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.
    The SRT analyzed several conservation efforts potentially affecting 
Atlantic sturgeon throughout its range. 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 incentive to retain Atlantic sturgeon. 
However, bycatch is known to occur in several fisheries (ASMFC TC, 
2007), and it is widely accepted that bycatch is underreported (PECE 
Implementation criterion 5). With respect to its effectiveness, 
contrary to information available in 1998 when the Amendment was 
approved, Atlantic sturgeon bycatch mortality is a primary threat 
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 (PECE Effectiveness criterion 1). In addition, there are limited 
resources for assessing current abundance of spawning females for each 
of the DPSs. Therefore, PECE effectiveness criterion 5 is not being 
met.
    For the reasons provided above, there is no certainty of 
implementation and effectiveness of the intended ASMFC FMP conservation 
effort for the GOM, NYB, or CB DPSs of Atlantic sturgeon.

Multi-State Conservation Program

    Three states, Maine, New Hampshire, and Massachusetts, have applied 
for and have received funding under a new Proactive Species 
Conservation Program grant. The project, entitled ``Multi-State 
Collaborative to Develop and Implement a Conservation Program for Three 
Anadromous Fish Species of Concern in the Gulf of Maine,'' includes 
proposed research on Atlantic sturgeon within the Kennebec River. 
Specifically, project participants will: (1) Use acoustic biotelemetry 
(deploy acoustic arrays) to identify essential Atlantic sturgeon 
habitat in the Kennebec River/Androscoggin River complex; (2) conduct a 
mark-and-recapture study using PIT tags to estimate subpopulation size 
and external Carlin tags to investigate movements beyond the estuary; 
(3) investigate non-traditional population estimation methods because 
of spawning periodicity of adult sturgeon; and, (4) obtain tissue 
samples for sturgeon to conduct genetic analysis and determine stock 
structure.
    The Atlantic sturgeon research component of the Multi-State 
Conservation Program is expected to provide new information on the GOM 
DPS of Atlantic sturgeon that could inform management decisions for 
future conservation efforts. However, the program, including the 
proposed research for Atlantic sturgeon, does not specifically describe 
the threats to the Atlantic sturgeon subpopulations in

[[Page 61892]]

question, and does not address how those threats would be reduced or 
eliminated (PECE Effectiveness criteria 1-6). Therefore, there is no 
certainty of implementation and effectiveness of a formalized 
conservation effort for the Penobscot River subpopulation of Atlantic 
sturgeon, or for the GOM DPS to which it belongs, as a result of the 
plan.

Penobscot River Restoration Project (PRRP)

    The PRRP is the result of many years of negotiations between 
Pennsylvania Power and Light (PPL), U.S. Department of the Interior 
(e.g., FWS, Bureau of Indian Affairs, National Park Service), Penobscot 
Indian Nation, the State of Maine (e.g., Maine State Planning Office, 
Inland Fisheries and Wildlife, MDMR), and several non-governmental 
organizations (NGOs; Atlantic Salmon Federation, American Rivers, Trout 
Unlimited, Natural Resources Council of Maine, among others). If 
implemented, the PRRP would lead to the removal of the two lowermost 
mainstem dams on the Penobscot River (Veazie and Great Works) and would 
decommission the Howland Dam and construct a nature-like fishway around 
it. As a result, portions of historical habitat once available to 
Atlantic sturgeon of the GOM DPS would be reopened. While the necessary 
funding has been committed by the government and other private donors 
to achieve the purchase of the dams, a significant amount of money 
still must be acquired in order for the parties to exercise the option 
to decommission and remove the Veazie and Great Works dams as well as 
to construct a nature like fishway for the Howland Dam. Staffing, 
funding level, funding source, and other resources necessary to fully 
implement the PRRP are not identified at this time. Therefore, 
currently, the PRRP does not satisfy criteria one and seven in the 
certainty of implementation of the PECE. Permitting and regulatory 
requirements are also uncertain at this stage because they are 
contingent upon the ability of the parties to raise the full amount of 
funds necessary, FERC approval of the Trust's permit to surrender the 
dams, and completion of required environmental review. Thus, the PRRP 
does not satisfy criterion four of the PECE, which requires that all 
authorizations (e.g., permits, land owner permission) necessary to 
implement the conservation effort are identified and that there is a 
high certainty that the parties to the agreement will obtain all 
necessary authorizations. Therefore, it is not possible to state at 
this time with a high level of certainty that this project will be 
fully implemented.

Hudson River Estuary Management Action Plan

    A Hudson River Estuary Management Action Plan was adopted by the 
NYDEC in May 1996. The goal of this Plan is to protect, restore, and 
enhance the productivity and diversity of natural resources of the 
Hudson River estuary to sustain a wide array of present and future 
human benefits. Multiple projects have been initiated as a response to 
this Plan. These include: (1) Coastal sampling; (2) juvenile Atlantic 
sturgeon sonic tracking project; (3) broodstock sonic tagging and PIT 
tagging to determine broodstock movements and spawning locations; and 
(4) New York long-term juvenile abundance survey.
    The research projects carried out under the Hudson River Estuary 
Management Action Plan are expected to significantly increase our 
knowledge of Atlantic sturgeon from the NYB DPS. Such information could 
help to inform management decisions for future conservation efforts. 
However, the Plan does not specifically describe the threats to the 
Hudson River sturgeon subpopulation, and does not reduce or eliminate 
those threats (PECE Effectiveness criteria 1-6). Therefore, there is no 
certainty of implementation and effectiveness of a formalized 
conservation effort for the Hudson River subpopulation of Atlantic 
sturgeon, or for the NYB DPS to which it belongs, as a result of the 
plan.

James River Atlantic Sturgeon Restoration Plan

    In 2005, private and FWS partners began work to create a James 
River Atlantic Sturgeon Restoration Plan. The plan outlines several 
restoration goals to help preserve and recover the James River Atlantic 
sturgeon subpopulation. These goals include: (1) Identify essential 
habitats, assess subpopulation status, and refine life history 
investigations in the James River; (2) protect the subpopulation of 
James River Atlantic sturgeon and its habitat; (3) coordinate and 
facilitate exchange of information on James River Atlantic sturgeon 
conservation and restoration activities; and (4) implement the 
restoration program. The plan also describes several milestones for 
reaching these goals. Those of most interest to this review include: 
(1) Identifying essential habitats and protecting them using regulatory 
and/or incentive programs; (2) developing and implementing standardized 
population sampling and monitoring programs; (3) developing population 
models; (4) developing an experimental culture of James River Atlantic 
sturgeon; (5) reducing or eliminating incidental mortality; (6) 
identifying and eliminating known or potentially harmful chemical 
contaminants that impede the recovery of James River sturgeon; (7) 
maintaining genetic integrity and diversity of the wild and hatchery-
reared stocks; and (8) designating and funding a James River Atlantic 
sturgeon restoration lead office.
    Portions of the plan have already been implemented, including the 
collection of YOY and adult tissue samples for genetic analysis; 
electronic tracking of sturgeon to determine preferred habitat use and 
spawning locations; collecting spine samples to establish age 
distributions; and establishing a long-term YOY index survey (A. 
Spells, FWS, pers. comm., 2007). All of these are expected to provide 
new information on the CB DPS of Atlantic sturgeon that could inform 
management decisions for future conservation efforts. However, the plan 
has not been formally approved by regulatory agencies. Therefore, at 
this time, it is uncertain whether the plan, including necessary 
regulatory action, funding, and permitting (PECE Implementation 
criterion 1, 2, 4, and 6-8) will be fully implemented. Information to 
demonstrate the certainty that the conservation effort will be 
effective is also lacking (PECE Effectiveness criterion 1-6). 
Therefore, there is no certainty of implementation and effectiveness of 
a formalized conservation effort for the James River subpopulation of 
Atlantic sturgeon, or for the CB DPS of Atlantic sturgeon to which it 
belongs, as a result of the plan.

Summary of Protective Efforts

    Various agencies, groups, and individuals are carrying out a number 
of efforts aimed at protecting and conserving Atlantic sturgeon 
belonging to the GOM, NYB, and CB DPSs. These actions are directed at 
reducing threats faced by Atlantic sturgeon and/or gaining additional 
knowledge of specific Atlantic sturgeon subpopulations. Such actions 
could contribute to the recovery of the GOM, NYB, and CB DPSs of 
Atlantic sturgeon in the future. However, there is still considerable 
uncertainty regarding the implementation and effectiveness of these 
efforts, and the extent to which any would reduce the threats to the 
GOM, NYB, or CB DPSs that are the cause of their (proposed) listing. 
Therefore, we have determined that none of these protective efforts 
currently contribute to making it unnecessary to list the GOM, NYB, or 
CB DPSs of Atlantic sturgeon.

[[Page 61893]]

Finding for GOM DPS

    As stated previously, the range of the GOM DPS is described as 
watersheds from the Maine/Canadian border and extending southward to 
include all associated watersheds draining into the Gulf of Maine as 
far south as Chatham, MA, as well as all marine waters, including 
coastal bays and estuaries, from the Bay of Fundy, Canada, to the Saint 
Johns River, FL (Figure 3).
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    There are no current abundance estimates for the GOM DPS of 
Atlantic sturgeon. The Kennebec River is currently the only known 
spawning river for the GOM DPS. The CPUE of subadult Atlantic sturgeon 
in a multi-filament gillnet survey conducted on the Kennebec River was 
considerably greater for the period of 1998-2000

[[Page 61894]]

(CPUE = 7.43) compared to the CPUE for the period 1977-1981 (CPUE = 
0.30). The CPUE of adult Atlantic sturgeon showed a slight increase 
over the same time period (1977-1981 CPUE = 0.12 versus 1998-2000 CPUE 
= 0.21) (Squiers, 2004).
    Evidence of Atlantic sturgeon spawning in other rivers of the GOM 
DPS is not available. However, Atlantic sturgeon continue to use these 
historical spawning rivers and may represent additional spawning groups 
(ASSRT, 2007). There is also new evidence of Atlantic sturgeon presence 
in rivers (e.g., the Saco River) where they have not been observed for 
many years.
    The majority of historical Atlantic sturgeon spawning habitat is 
accessible in all but the Merrimack River of the GOM DPS. Whether 
Atlantic sturgeon spawning habitat in the GOM DPS is fully functional 
is difficult to quantify. In terms of threats to habitat, the SRT 
identified water quality and dredging as threats. While measures do not 
currently exist to minimize or reduce the impacts of dredging 
specifically for Atlantic sturgeon, the regulatory mechanisms do exist 
that would allow the development of such measures.
    The SRT ranked bycatch as a primary threat for the GOM DPS of 
Atlantic sturgeon since it poses an immediate risk of death for the 
fish, and specific regulatory measures to remove or reduce Atlantic 
sturgeon bycatch have not been implemented. Subadult and adult Atlantic 
sturgeon of the GOM DPS may be incidentally caught in fisheries that 
occur throughout their marine range. Many of the fisheries that result 
in bycatch of Atlantic sturgeon, including the monkfish gillnet 
fishery, are federally regulated through FMPs. NMFS is required to 
reduce bycatch of federally managed fisheries. Therefore, while 
measures to specifically reduce bycatch of Atlantic sturgeon are not in 
place, the regulatory mechanisms that would allow the development of 
such measures do exist.
    The SRT considered the factors of section 4(a)(1) of the ESA and 
concluded that there was a moderate risk (34-50 percent chance) that 
the GOM DPS of Atlantic sturgeon would become endangered over the next 
20 years. However, when considering this information as well as those 
efforts being made to protect the species, the SRT concluded that there 
were insufficient data to make a recommendation as to whether listing 
was warranted.
    Since completion of the status review report, we have received new 
information on Atlantic sturgeon bycatch (ASMFC, 2007) and water 
quality of the watersheds within the range of the GOM DPS (EPA, 2008). 
While the new estimates of Atlantic sturgeon bycatch are comparable to 
those considered by the SRT from Stein et al. (2004), new analyses 
suggest that the level of bycatch mortality is not sustainable for the 
GOM DPS in the long term (ASMFC, 2007).
    With respect to water quality, despite the persistence of 
contaminants and increasing land development, many rivers and 
watersheds within the range of the GOM DPS have demonstrated 
improvement in water quality (EPA, 2008). The most recent EPA Coastal 
Condition Report identified water quality for coastal waters north of 
Cape Cod as, generally, fair to good (EPA, 2008).
    We further considered what effect low abundance may be having on 
the GOM DPS. According to DeMaster et al. (2004), factors that tend to 
decrease population growth rates at low levels of abundance result in a 
process known as ``depensation.'' Depensation occurs, for example, 
when: (1) It is more difficult for individuals to find mates at low 
levels of abundance; (2) there is a loss of average fitness because the 
gene pool tends to be smaller at low levels of abundance; or (3) the 
species is more vulnerable to catastrophic events because a species is 
likely to be composed of only one or a few populations at low levels of 
abundance. When depensatory factors prevail, even with the elimination 
of anthropogenic threats, the species tends toward extinction.
    As described above, there is no abundance estimate for the GOM DPS. 
Based on information available from Atlantic sturgeon subpopulations of 
other DPSs, the SRT (2007) suggested that there may be less than 300 
spawning adults per year for the Kennebec River subpopulation in the 
GOM DPS. Presuming that the SRT's assumption is correct and that the 
current total population abundance is low, we considered whether 
depensation is currently occurring for the GOM DPS of Atlantic 
sturgeon. We concluded that it is unlikely that the GOM DPS is 
currently experiencing depensation given that Atlantic sturgeon of the 
GOM DPS are being observed in increasing numbers (e.g., in the Kennebec 
and the Merrimack River estuary) and in areas of the GOM DPS where they 
have not been observed for many years (e.g., the Saco River). Such 
observations are uncharacteristic of a subpopulation that is being 
affected by depensation. In addition, we concluded that Atlantic 
sturgeon are less susceptible to depensation in comparison to many 
other species given certain life history characteristics. For example, 
female Atlantic sturgeon produce a large number of eggs per spawning 
year (400,000-4 million and potentially as many as 7-8 million; Smith 
et al., 1982; Van Eenennaam et al. 1996; Van Eenennaam and Doroshov, 
1998; Dadswell, 2006). Each reproductively active male Atlantic 
sturgeon is capable of fertilizing the eggs of multiple females within 
a spawning year and, as a result of natal homing, spawning adults are 
cued to areas where they can expect to find ``mates.'' These 
characteristics help to ensure that successful reproduction can still 
occur even at low levels of abundance. Furthermore, Atlantic sturgeon 
of a single DPS are temporally and spatially separated depending on age 
class and reproductive condition. For example, males spawn every 1 to 2 
years and females every 3 to 5 years. Spawning occurs over weeks with 
reproductively active females making relatively short spawning runs, 
thus minimizing their exposure to catastrophic events that might occur 
in the spawning rivers. Subadults and non-spawning adults range across 
a wide area of the marine environment while YOY and juveniles occur in 
the estuaries of their natal river. These characteristic range and 
habitat patterns reduce the likelihood that a single catastrophic event 
(e.g., a flood, drought, red-tide event) would kill or injure a 
sufficient number of sturgeon across a single or all age classes such 
that the DPS would become extinct.
    We also considered whether the spatial structure of the GOM DPS has 
been degraded to the extent that the viability of the population is 
threatened. According to the NMFS report, ``Viable Salmonid Populations 
and the Recovery of Evolutionarily Significant Units'' (2000), ``a 
population's spatial structure is made up of both the geographic 
distribution of individuals in the population and the processes that 
generate that distribution. A population's spatial structure depends 
fundamentally on habitat quality, spatial configuration, and dynamics 
as well as the dispersal characteristics of individuals in the 
population. As one example of how a degraded spatial structure can 
threaten the viability of a population, consider a population divided 
into subpopulations. A population with a high subpopulation extinction 
rate can persist only if new subpopulations are founded at a rate equal 
to the rate at which subpopulations naturally go extinct. If human 
activity interferes with the

[[Page 61895]]

formation of new subpopulations by restricting straying patterns or 
destroying habitat patches suitable for colonization, the population 
will ultimately go extinct as subpopulations blink out one by one. 
However, there will be a time lag between the disruption of spatial 
processes and reductions in the abundance or productivity of the 
population because abundance will not necessarily decline until 
subpopulations start going extinct.'' Based on the best available 
information, human activity is not restricting straying patterns for 
Atlantic sturgeon belonging to the GOM DPS or destroying patches 
suitable for colonization. To the contrary, Atlantic sturgeon of the 
GOM DPS are being observed in increasing numbers (e.g., in the 
Merrimack River estuary) and in areas (e.g., the Saco River) where they 
have not been observed for many years.
    In summary, based on the information contained in the status review 
report and new information on bycatch of Atlantic sturgeon as well as 
water quality for the watersheds of the GOM DPS, we concur with the SRT 
that bycatch, water quality, and dredging are the threats affecting the 
GOM DPS of Atlantic sturgeon. The SRT determined that there was a 
moderate risk (34-50 percent chance) that the GOM DPS of Atlantic 
sturgeon would become endangered over the next 20 years. Since 
completion of the status review report, fish have been documented in 
rivers where they were previously not reported to occur or where they 
were suspected of having been extirpated. The new information on water 
quality (EPA, 2008) indicates that water quality has improved. The new 
information on bycatch (ASMFC TC, 2007), however, supports that bycatch 
is having a greater impact on Atlantic sturgeon than that considered by 
the SRT. Age to maturity for Atlantic sturgeon of the GOM DPS is 
unknown. However, age at maturity is 11 to 21 years for Atlantic 
sturgeon originating from the Hudson River (Young et al., 1998), and 22 
to 34 years for Atlantic sturgeon that originate from the Saint 
Lawrence River (Scott and Crossman, 1973). Age at maturity for Atlantic 
sturgeon of the GOM DPS likely fall within these values given that 
Atlantic sturgeon subpopulations exhibit clinal variation with faster 
growth and earlier age to maturity for those that originate from more 
southern waters, and slower growth and later age to maturity for those 
that originate from more northern waters. Since there is only one 
(known) spawning group for the GOM DPS, loss of the spawning group 
would result in extinction of the DPS.
    Given these considerations, including the original determination by 
the SRT, the best available information indicates the DPS is likely to 
become an endangered species within the foreseeable future (i.e., a 
greater than 50 percent chance of becoming endangered over the next 20 
years) throughout all or a significant portion of its range due to 
bycatch, water quality, and dredging. There are several indications of 
potential for improvement in the status of the DPS, including the 
following: There have been and continue to be improvements in water 
quality; regulatory mechanisms to address bycatch exist and could be 
effectively implemented to reduce associated mortalities; the effects 
of dredging have been and continue to be addressed for shortnose 
sturgeon and, therefore, provide indirect benefits for Atlantic 
sturgeon utilizing the same areas; and there are some indications of 
increased spatial distribution of Atlantic sturgeon in some areas of 
the DPS (e.g., use of the Saco River and increased use of the Merrimack 
River estuary). However, given the on-going threats to the GOM DPS, we 
conclude that listing as threatened is warranted for the GOM DPS of 
Atlantic sturgeon.

Finding for NYB DPS

    As stated previously, the range of the NYB DPS is described as 
watersheds that drain into coastal waters, including Long Island Sound, 
the New York Bight, and Delaware Bay, from Chatham, MA, to the 
Delaware-Maryland border on Fenwick Island, as well as all marine 
waters, including coastal bays and estuaries, from the Bay of Fundy, 
Canada, to the Saint Johns River, FL (Figure 4).
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    The only abundance estimate for Atlantic sturgeon belonging to the 
NYB DPS is 870 spawning adults per year for the Hudson River 
subpopulation (Kahnle et al., 2007). However, the estimate is based on 
data collected from 1985-1995 and may underestimate current conditions 
(Kahnle et al., 2007). Data collected from the Hudson River cannot be 
used to estimate the total number of adults in the subpopulation since 
mature Atlantic sturgeon may not spawn every year (Vladykov and 
Greeley, 1963; Smith, 1985; Van Eenennaam et al., 1996; Stevenson and 
Secor, 1999; Collins et al., 2000; Caron et al., 2002), and it is 
unclear to what extent mature fish in a non-spawning condition occur on 
the spawning grounds.
    In addition to the Hudson River, Atlantic sturgeon are known to 
spawn in the Delaware River. Since 1991, more than 2,000 Atlantic 
sturgeon have been captured and tagged (DNREC, 2009) in the Delaware 
River. Evidence of Atlantic sturgeon spawning in the Taunton and 
Connecticut rivers of the NYB DPS is not available. However, Atlantic 
sturgeon continue to use these rivers (ASSRT, 2007).
    The majority of historical Atlantic sturgeon spawning habitat for 
the NYB DPS is accessible. Whether Atlantic sturgeon spawning habitat 
in the NYB DPS is fully functional is difficult to quantify. In terms 
of threats to habitat, the SRT identified water quality and dredging, 
and in terms of threats affecting the Delaware River subpopulation of 
the DPS directly, the SRT identified vessel strikes. While

[[Page 61897]]

contaminants persist, the SRT noted several studies and reports 
indicating improvements in water quality within the Hudson, Delaware, 
Taunton, and Connecticut Rivers. Measures do not currently exist to 
remove or reduce the impacts of dredging and vessel strikes for 
Atlantic sturgeon. However, the regulatory mechanisms do exist that 
would allow the development of such measures.
    The SRT ranked bycatch as the primary threat for the NYB DPS of 
Atlantic sturgeon since it poses an immediate risk of death for the 
fish, and specific regulatory measures to remove or reduce Atlantic 
sturgeon bycatch have not been implemented. Subadult and adult Atlantic 
sturgeon of the NYB DPS may be incidentally caught in fisheries that 
occur throughout their marine range. Many of the fisheries that result 
in bycatch of Atlantic sturgeon, including the monkfish gillnet 
fishery, are federally regulated through FMPs. NMFS is required to 
reduce bycatch of federally managed fisheries. Therefore, while 
measures to specifically reduce bycatch of Atlantic sturgeon are not in 
place, the regulatory mechanisms that would allow the development of 
such measures do exist.
    The SRT considered the factors in section 4(a)(1) of the ESA and 
concluded that there was a moderate (34-50 percent chance) to 
moderately high risk (greater than 50 percent chance) that the NYB DPS 
would become endangered over the next 20 years.
    Since completion of the status review report, we have received new 
information on Atlantic sturgeon bycatch (ASMFC, 2007) and water 
quality for the watersheds within the NYB DPS (EPA, 2008). While the 
new estimates of Atlantic sturgeon bycatch are comparable to those 
considered by the SRT from Stein et al. (2004), new analyses suggest 
that the level of bycatch mortality is not sustainable for the NYB DPS 
in the long term (ASMFC, 2007). With respect to water quality, the most 
recent EPA Coastal Condition Report identified that coastal water 
quality was fair overall for waters south of Cape Cod through Delaware 
(EPA, 2008). However, sampled sites in Massachusetts and Rhode Island 
were generally scored as good while waters from Connecticut to Delaware 
received fair and poor ratings (EPA, 2008). In particular, the report 
noted that most of the Northeast Coast sites that were rated as poor 
for water quality were concentrated in a few estuarine systems, 
including New York/New Jersey Harbor, some tributaries of the Delaware 
Bay, and the Delaware River (EPA, 2008).
    Significant increases in abundance and distribution of shortnose 
sturgeon within the Hudson and Delaware Rivers suggest that 
improvements in water quality have resulted in benefits to the species. 
Available evidence further suggests that existing water quality in 
these rivers and surrounding estuaries is not impeding reproduction of 
shortnose sturgeon that occur there.
    We further considered what effect low abundance may be having on 
the NYB DPS, and whether the NYB DPS is currently experiencing 
depensation. As described above, the estimate of 870 spawning adults 
per year for the Hudson River subpopulation is based on data collected 
from 1985-1995 (Kahnle et al., 2007). The SRT (2007) suggested that 
there may be less than 300 spawning adults per year for the Delaware 
subpopulation of the NYB DPS. We concluded that it is unlikely that the 
Hudson River subpopulation of the NYB DPS is currently experiencing 
depensation given the available population estimate which suggests an 
adult spawning population of close to 1,000 sturgeon. We were unable to 
make a conclusion as to whether depensation is likely occurring for the 
Delaware subpopulation of the NYB DPS. Evidence of age-0 fish in the 
Delaware River in 2009 indicates that spawning continues to occur in 
that river. Ongoing studies may help to elucidate the abundance and/or 
trend in abundance of this subpopulation. However, that information is 
not yet available. As described in the finding for the GOM DPS, we have 
concluded that certain Atlantic sturgeon life history characteristics 
help to reduce the likelihood that depensation will occur. Thus, we 
expect that depensation for Atlantic sturgeon would occur at a lower 
level of abundance in comparison to a species that did not share these 
characteristics.
    We also considered whether the spatial structure of the NYB DPS has 
been degraded to the extent that the viability of the population is 
threatened. Based on the best available information, human activity is 
not restricting straying patterns for Atlantic sturgeon belonging to 
the Hudson River subpopulation of the NYB DPS. It is unclear, however, 
to what extent human activity is restricting straying patterns of 
sturgeon belonging to the Delaware subpopulation of the NYB DPS, given 
the very limited information on abundance and the known threats 
affecting this subpopulation (i.e., bycatch, water quality, dredging 
and vessel strikes).
    In summary, based on the information contained in the status review 
report and new information on bycatch of Atlantic sturgeon and water 
quality for the watersheds of the NYB DPS, we concur with the SRT that 
bycatch, water quality, dredging, and vessel strikes act as significant 
threats affecting the NYB DPS of Atlantic sturgeon. The SRT determined 
that there was a moderate (34-50 percent chance) to moderately high 
risk (greater than 50 percent chance) that the NYB DPS would become 
endangered over the next 20 years. The new information on water quality 
for the area covered by the NYB DPS (EPA, 2008) is similar to that 
considered by the SRT for the status report. The new information on 
bycatch (ASMFC TC, 2007), however, supports that bycatch is having a 
greater impact on Atlantic sturgeon than that considered by the SRT. 
Additionally, since completion of the status review report, a dredging 
project to deepen the Delaware shipping channel in an area where 
Atlantic sturgeon is suspected to occur has been proposed and is in the 
process of attaining necessary approvals. Age to maturity for NYB DPS 
Atlantic sturgeon is 11 to 21 years (Young et al., 1998; DNREC, 2009). 
Given that there are two spawning groups for the NYB DPS, loss of one 
spawning group will not result in the immediate extinction of the NYB 
DPS. Nevertheless, the loss of either spawning group would result in 
loss of spatial structure for the DPS as well as numbers of fish to 
support spawning. Therefore, both spawning groups are essential to the 
DPS.
    Given these considerations, we find that the best available 
information does support that the NYB DPS is in danger of extinction 
throughout all or a significant portion of its range. There are several 
indications of potential for improvement in the status of the DPS, 
including the following: Regulatory mechanisms to address bycatch exist 
and could be effectively implemented to reduce associated mortalities; 
and the effects of dredging have been and continue to be addressed for 
shortnose sturgeon and, therefore, provide indirect benefits for 
Atlantic sturgeon where these species co-occur. However, given the 
ongoing threats to the NYB DPS, we conclude that listing as endangered 
is warranted for the NYB DPS of Atlantic sturgeon.

Finding for CB DPS

    As stated previously, the range of the CB DPS is described as 
watersheds that drain into the Chesapeake Bay and into coastal waters 
from the Delaware-Maryland border on Fenwick Island to Cape Henry, VA, 
as well as all marine waters, including coastal bays and estuaries, 
from the Bay of Fundy,

[[Page 61898]]

Canada, to the Saint Johns River, FL (Figure 5).
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    There are no current abundance estimates for the CB DPS. As 
previously stated, the FWS has been funding the Maryland Reward Program 
since 1996; this program has resulted in the documentation of over 
1,133 wild Atlantic sturgeon. Virginia also instituted an Atlantic 
sturgeon reward program in the Chesapeake Bay in 1997 and 1998 (Spells, 
2007). This reward program documented and measured 295 Atlantic 
sturgeon. However, since sturgeon from multiple DPSs occur in the 
Chesapeake Bay, it is unlikely that all of the sturgeon captured 
originated from the CB DPS.
    Atlantic sturgeon of the CB DPS are known to spawn in the James 
River. Clear evidence of Atlantic sturgeon spawning in other rivers of 
the CB DPS is not available. However, Atlantic sturgeon continue to use 
these rivers,

[[Page 61899]]

and may represent additional spawning groups (ASSRT, 2007). In 
particular, commercial fishers have regularly reported observations of 
YOY or age-1 juveniles in the York River over the past few years (K. 
Place, Commercial Fisherman, pers. comm., 2006). Analyses of samples 
collected from Atlantic sturgeon juveniles in the James and York Rivers 
also demonstrated genetic differences between the sampled groups. The 
observations and genetic results suggest that spawning may be occurring 
in the York River.
    The majority of historical Atlantic sturgeon spawning habitat for 
the CB DPS is accessible. Although dams are present, most are located 
upriver of where spawning is expected to have historically occurred. 
Whether Atlantic sturgeon spawning habitat in the CB DPS is fully 
functional is difficult to quantify. In terms of threats to habitat, 
the SRT identified water quality and dredging, and in terms of direct 
threats to the CB DPS, the SRT identified vessel strikes. Initiatives 
have been called for to address the condition of the Chesapeake Bay 
(Executive Order, May 12, 2009; NOAA's Chesapeake Bay Protection and 
Restoration Final Strategy, 2010). Niklitschek and Secor (2005) 
demonstrated that achieving the EPA`s dissolved oxygen criteria for the 
Chesapeake Bay would increase Atlantic sturgeon available habitat by 13 
percent per year (Niklitschek and Secor, 2005). Measures do not 
currently exist to remove or reduce the impacts of dredging and vessel 
strikes specifically for Atlantic sturgeon. However, the regulatory 
mechanisms that would allow the development of such measures do exist.
    The SRT ranked bycatch as a primary threat for the CB DPS of 
Atlantic sturgeon because it poses an immediate risk of death for the 
fish, and specific regulatory measures to remove or reduce Atlantic 
sturgeon bycatch have not been implemented. Subadult and adult Atlantic 
sturgeon of the CB DPS may be incidentally caught in fisheries that 
occur throughout their marine range. Many of the fisheries that result 
in bycatch of Atlantic sturgeon, including the monkfish gillnet 
fishery, are federally regulated through FMPs. NMFS is required to 
reduce bycatch in federally managed fisheries. Therefore, while 
measures to specifically reduce bycatch of Atlantic sturgeon are not in 
place, the regulatory mechanisms that would allow the development of 
such measures do exist.
    The SRT considered the factors in section 4(a)(1) of the ESA and 
concluded that there was a moderately high risk (greater than 50 
percent chance) that the CB DPS would become endangered over the next 
20 years.
    Since completion of the status review report, we have received new 
information on the bycatch of Atlantics sturgeon (ASMFC, 2007) and 
water quality of the watersheds within the CB DPS (EPA, 2008). While 
the new estimates of Atlantic sturgeon bycatch are comparable to those 
considered by the SRT from Stein et al. (2004), new analyses suggest 
that the level of bycatch mortality is not sustainable for the CB DPS 
in the long term (ASMFC, 2007). With respect to water quality, the most 
recent EPA Coastal Condition Report identified water quality as fair to 
poor for the Chesapeake Bay and immediate vicinity (to the Virginia-
North Carolina border) (EPA, 2008). In particular, the western and 
northern tributaries of the Chesapeake Bay were rated as poor (EPA, 
2008). The Bay is especially vulnerable to the effects of nutrients due 
to its large surface area to volume ratio, relatively low exchange 
rates, and strong vertical stratification during the spring and summer 
months (ASSRT, 2007). The extensive watersheds of this historically 
unglaciated area funnel nutrients, sediment, and organic material into 
secluded, poorly flushed estuaries that are more susceptible to 
eutrophication (EPA, 2008).
    We further considered what effect low abundance may be having on 
the CB DPS, and whether the CB DPS is currently experiencing 
depensation. As described above, there is no abundance estimate for the 
CB DPS. Based on information available from Atlantic sturgeon 
subpopulations of other DPSs, the SRT (2007) suggested that there may 
be less than 300 spawning adults per year for the CB DPS. Presuming 
that the SRT's assumption is correct and assuming that the current 
total population abundance is low, we considered whether the CB DPS is 
currently experiencing depensation. We concluded that it is unlikely 
that the CB DPS is currently experiencing depensation, given that 
increasing numbers of Atlantic sturgeon belonging to the CB DPS are 
being observed (Garman and Balazik, unpub. data in Richardson et al., 
2009). Such observations are uncharacteristic of a population that is 
experiencing depensation. In addition, as described in the finding for 
the GOM DPS, we have concluded that certain Atlantic sturgeon life 
history characteristics help to reduce the likelihood that depensation 
will occur. Thus, we expect that depensation for Atlantic sturgeon 
would occur at a lower level of abundance in comparison to species that 
did not share these characteristics.
    We also considered whether the spatial structure of the CB DPS has 
been degraded to the extent that the viability of the population is 
threatened. Observations of increased numbers of juvenile and adult 
Atlantic sturgeon suggest that human activity is not significantly 
restricting straying patterns for Atlantic sturgeon belonging to the CB 
DPS. However, the evidence is not conclusive, given the very limited 
information on abundance and distribution of Atlantic sturgeon in the 
tributaries to the Bay, and the known threats affecting the DPS (i.e., 
bycatch, water quality, dredging, and vessel strikes).
    In summary, based on the information contained in the status review 
report and new information on bycatch of Atlantic sturgeon and water 
quality for the watersheds of the CB DPS, we concur with the SRT that 
bycatch, water quality, dredging, and vessel strikes act as significant 
threats affecting the CB DPS of Atlantic sturgeon. The SRT determined 
that there was a moderately high risk (greater than 50 percent chance) 
that the CB DPS would become endangered over the next 20 years. The new 
information on water quality for the area covered by the CB DPS (EPA, 
2008) is similar to that considered by the SRT for the status review 
report. In addition, the new information on bycatch (ASMFC TC, 2007) 
supports that bycatch is having a greater impact on Atlantic sturgeon 
than that considered by the SRT. Age at maturity for Atlantic sturgeon 
originating from the Chesapeake Bay DPS is unknown. However, age at 
maturity is 5 to 19 years for Atlantic sturgeon originating from South 
Carolina rivers (Smith et al., 1982), and 11 to 21 years for Atlantic 
sturgeon originating from the Hudson River (Young et al., 1998). Age at 
maturity for Atlantic sturgeon of the CB DPS likely fall within these 
values given that Atlantic sturgeon subpopulations exhibit clinal 
variation with faster growth and earlier age to maturity for those that 
originate from more southern waters, and slower growth and later age to 
maturity for those that originate from more northern waters. Since 
there is only one (known) spawning river for the CB DPS, loss of that 
spawning group would result in extinction of the DPS.
    Given these considerations, we find that the best available 
information does support that the CB DPS is in danger of extinction 
throughout all or a significant portion of its range. There are several 
indications of potential for improvement in the status of the DPS, 
including the following: Regulatory

[[Page 61900]]

mechanisms to address bycatch exist and could be effectively 
implemented to reduce associated mortalities; and the effects of 
dredging have been and continue to be addressed for shortnose sturgeon 
and, therefore, provide indirect benefits for Atlantic sturgeon where 
these species co-occur. However, given the ongoing threats to the CB 
DPS, we conclude that listing as endangered is warranted for the CB DPS 
of Atlantic sturgeon.

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 
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 Gulf of Maine, New York Bight, and Chesapeake Bay DPSs is invited.

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

    The GOM, NYB, and CB 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 Southeast 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). 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

[[Page 61901]]

could result in violation of section 9 prohibitions against ``take'' of 
the Atlantic sturgeon in the NYB and CB 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 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 intend to undergo a 
rulemaking process under section 4(d) to issue protective regulations 
for the GOM DPS, which is being proposed as threatened under the ESA, 
and it is likely that these same activities would result in violation 
of take prohibitions that we may extend to the GOM DPS in such a 
section 4(d) rule.
    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 Cited

    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 three DPSs proposed to be listed occur.

Environmental Justice

    Executive Order 12898 requires that Federal actions address 
environmental justice in 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. NMFS has 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 three DPSs. Letters documenting NMFS' determination, along with 
the proposed rule, were 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

50 CFR Part 223

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

50 CFR Part 224

    Endangered and threatened species, Exports, Imports.

    Dated: September 23, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR parts 223 and 224 
are proposed to be amended as follows:

[[Page 61902]]

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

    1. The authority citation for part 223 continues to read as 
follows:

    Authority: 16 U.S.C. 1531-1543; subpart B, Sec.  223.201-202 
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for 
Sec.  223.206(d)(9).

    2. In Sec.  223.102, paragraph (c)(29) is added to read as follows:


Sec.  223.102  Enumeration of threatened marine and anadromous species.

* * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Species \1\
-------------------------------------------------------------------        Where listed           Citation(s) for  listing    Citation(s) for  critical
           Common name                     Scientific name                                            determination(s)         habitat  designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
(c) * * *
(29) Atlantic Sturgeon--Gulf of   Acipenser oxyrinchus oxyrinchus.  Gulf of Maine Distinct      [INSERT FR CITATION & DATE
 Maine DPS*.                                                         Population Segment. The     WHEN PUBLISHED AS A FINAL
                                                                     GOM DPS includes the        RULE].
                                                                     following: All anadromous
                                                                     Atlantic sturgeon whose
                                                                     range occurs in
                                                                     watersheds from the Maine/
                                                                     Canadian border and
                                                                     extending southward to
                                                                     include all associated
                                                                     watersheds draining into
                                                                     the Gulf of Maine as far
                                                                     south as Chatham, MA, as
                                                                     well as wherever these
                                                                     fish occur in coastal
                                                                     bays and estuaries and
                                                                     the marine environment.
                                                                     Within this range,
                                                                     Atlantic sturgeon have
                                                                     been documented from the
                                                                     following rivers:
                                                                     Penobscot, Kennebec,
                                                                     Androscoggin, Sheepscot,
                                                                     Saco, Piscataqua, and
                                                                     Merrimack. The marine
                                                                     range of Atlantic
                                                                     sturgeon from the GOM DPS
                                                                     extends from the Bay of
                                                                     Fundy, Canada to the
                                                                     Saint Johns River, FL.
                                                                     The GOM DPS also includes
                                                                     Atlantic sturgeon held in
                                                                     captivity (e.g.,
                                                                     hatcheries, scientific
                                                                     institutions) and which
                                                                     are identified as fish
                                                                     belonging to the GOM 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
                                                                     GOM DPS, or is the
                                                                     progeny of any fish that
                                                                     originated from a river
                                                                     within the range of the
                                                                     GOM 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).

* * * * *

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

    3. 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.

    4. In Sec.  224.101(a), amend the table by adding entries for 
Atlantic Sturgeon-New York Bight DPS, and Atlantic Sturgeon-Chesapeake 
Bay DPS at the end of the table to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species

* * * * *
    (a) * * *

[[Page 61903]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                            Species \1\
-------------------------------------------------------------------        Where listed           Citation(s) for  listing    Citation(s) for  critical
           Common name                     Scientific name                                            determination(s)         habitat  designation(s)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Atlantic Sturgeon--New York       Acipenser oxyrinchus oxyrinchus.  New York Bight Distinct     [INSERT FR CITATION & DATE   NA
 Bight DPS.                                                          Population Segment. The     WHEN PUBLISHED AS A FINAL
                                                                     NYB DPS includes the        RULE].
                                                                     following: All anadromous
                                                                     Atlantic sturgeon whose
                                                                     range occurs in the
                                                                     watersheds that drain
                                                                     into coastal waters,
                                                                     including Long Island
                                                                     Sound, the New York
                                                                     Bight, and Delaware Bay,
                                                                     from Chatham, MA to the
                                                                     Delaware-Maryland border
                                                                     on Fenwick Island. Within
                                                                     this range, Atlantic
                                                                     sturgeon have been
                                                                     documented from the
                                                                     Hudson and Delaware
                                                                     rivers as well as at the
                                                                     mouth of the Connecticut
                                                                     and Taunton rivers, and
                                                                     throughout Long Island
                                                                     Sound. The marine range
                                                                     of Atlantic sturgeon from
                                                                     the NYB DPS extends from
                                                                     the Bay of Fundy, Canada
                                                                     to the Saint Johns River,
                                                                     FL. The NYB DPS also
                                                                     includes Atlantic
                                                                     sturgeon held in
                                                                     captivity (e.g.,
                                                                     hatcheries, scientific
                                                                     institutions) and which
                                                                     are identified as fish
                                                                     belonging to the NYB 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
                                                                     NYB DPS, or is the
                                                                     progeny of any fish that
                                                                     originated from a river
                                                                     within the range of the
                                                                     NYB DPS.
Atlantic Sturgeon--Chesapeake     Acipenser oxyrinchus oxyrinchus.  Chesapeake Bay Distinct     [INSERT FR CITATION & DATE   NA
 Bay DPS.                                                            Population Segment. The     WHEN PUBLISHED AS A FINAL
                                                                     CB DPS includes the         RULE].
                                                                     following: All anadromous
                                                                     Atlantic sturgeon whose
                                                                     range occurs in the
                                                                     watersheds that drain
                                                                     into the Chesapeake Bay
                                                                     and into coastal waters
                                                                     from the Delaware-
                                                                     Maryland border on
                                                                     Fenwick Island to Cape
                                                                     Henry, VA, as well as
                                                                     wherever these fish occur
                                                                     in coastal bays and
                                                                     estuaries and the marine
                                                                     environment. Within this
                                                                     range, Atlantic sturgeon
                                                                     have been documented from
                                                                     the James, York, Potomac,
                                                                     Rappahannock, Pocomoke,
                                                                     Choptank, Little
                                                                     Choptank, Patapsco,
                                                                     Nanticoke, Honga, and
                                                                     South rivers as well as
                                                                     the Susquehanna Flats.
                                                                     The marine range of
                                                                     Atlantic sturgeon from
                                                                     the CB DPS extends from
                                                                     the Bay of Fundy, Canada
                                                                     to the Saint Johns River,
                                                                     FL. The CB DPS also
                                                                     includes Atlantic
                                                                     sturgeon held in
                                                                     captivity (e.g.,
                                                                     hatcheries, scientific
                                                                     institutions) and which
                                                                     are identified as fish
                                                                     belonging to the CB 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
                                                                     CB DPS, or is the progeny
                                                                     of any fish that
                                                                     originated from a river
                                                                     within the range of the
                                                                     CB 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).


[[Page 61904]]

* * * * *
[FR Doc. 2010-24459 Filed 10-5-10; 8:45 am]
BILLING CODE 3510-22-P