61872 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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. 

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: 

• Federal eRulemaking Portal: http// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Fax: To the attention of Lynn 

Lankshear at (978) 281–9394. 

• 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 61873 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61874 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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° and 18 °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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 61875 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61876 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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). 

BILLING CODE 3510–22–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61878 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP06OC10.000</GPH>
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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). 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61880 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

BILLING CODE 3510–22–C 

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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP06OC10.001</GPH>
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 multifilament 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 DelawareMaryland 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 (statelisted). 

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’’) 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61882 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 semiquantitative approach to assess the 

overall effect of those threats to each 

DPS (ASSRT, 2007; Patrick and DamonRandall, 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61884 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 m3 in the first year of 

construction followed by maintenance 

dredging of 67,000–97,000 m3/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 oceangoing 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 fullscale 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, nonpoint 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61886 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 RoeblingTrenton 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 °C increase of 

water temperature in the Chesapeake 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61888 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 MidAtlantic 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 subadults 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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 nonindigenous 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 interjurisdictional 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 federallyregulated 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61890 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 ESAlisted 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). Twentynine 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). 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 hatcheryorigin 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61892 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 naturelike 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 longterm 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. 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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). 

BILLING CODE 3510–22–P 

BILLING CODE 3510–22–C 

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 multifilament gillnet survey conducted on the 

Kennebec River was considerably 

greater for the period of 1998–2000 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP06OC10.002</GPH>
61894 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

(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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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). 

BILLING CODE 3510–22–P 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61896 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

BILLING CODE 3510–22–C 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP06OC10.003</GPH>
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 DelawareMaryland border on Fenwick Island to 

Cape Henry, VA, as well as all marine 

waters, including coastal bays and 

estuaries, from the Bay of Fundy, 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61898 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

Canada, to the Saint Johns River, FL 

(Figure 5). 

BILLING CODE 3510–22–P 

BILLING CODE 3510–22–C 

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, 


srobinson on DSKHWCL6B1PROD with PROPOSALS2EP06OC10.004</GPH>
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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 VirginiaNorth 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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61900 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 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: 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61902 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

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, 

§ 223.201–202 also issued under 16 U.S.C. 

1361 et seq.; 16 U.S.C. 5503(d) for 

§ 223.206(d)(9). 

2. In § 223.102, paragraph (c)(29) is 

added to read as follows: 

§ 223.102 Enumeration of threatened 

marine and anadromous species. 

* * * * * 

Species 1

Where listed 

Citation(s) for 

listing 

determination(s) 

Citation(s) for 

critical habitat 

Common name Scientific name designation(s) 

*******

(c) * * * 

(29) Atlantic Sturgeon—Gulf of 

Maine DPS*.

Acipenser oxyrinchus 

oxyrinchus.

Gulf of Maine Distinct Population Segment. The GOM 

DPS includes the 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.

[INSERT FR CITATION & 

DATE WHEN 

PUBLISHED 

AS A FINAL 

RULE].

* * * * * * * 

1Species 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 § 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: 

§ 224.101 Enumeration of endangered 

marine and anadromous species 

* * * * * 

(a) * * * 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 61903 

Species 1

Where listed 

Citation(s) for 

listing 

determination(s) 

Citation(s) for 

critical habitat 

Common name Scientific name designation(s) 

*******

Atlantic Sturgeon— 

New York Bight 

DPS.

Acipenser oxyrinchus 

oxyrinchus.

New York Bight Distinct Population Segment. The NYB 

DPS includes the 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.

[INSERT FR CITATION & 

DATE WHEN 

PUBLISHED 

AS A FINAL 

RULE].

NA 

Atlantic Sturgeon— 

Chesapeake Bay 

DPS.

Acipenser oxyrinchus 

oxyrinchus.

Chesapeake Bay Distinct Population Segment. The CB 

DPS includes the 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.

[INSERT FR CITATION & 

DATE WHEN 

PUBLISHED 

AS A FINAL 

RULE].

NA 

1Species 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). 


srobinson on DSKHWCL6B1PROD with PROPOSALS2
61904 Federal Register / Vol. 75, No. 193 / Wednesday, October 6, 2010 / Proposed Rules 

* * * * * 

[FR Doc. 2010–24459 Filed 10–5–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 224 

RIN 0648–XN50 

[Docket No. 090219208–9210–01] 

Endangered and Threatened Wildlife 

and Plants; Proposed Listings for Two 

Distinct Population Segments of 

Atlantic Sturgeon (Acipenser 

oxyrinchus oxyrinchus) in the 

Southeast 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: In 2007, a Status Review 

Team (SRT) consisting of Federal 

biologists from NMFS, U.S. Geological 

Survey (USGS), and U.S. Fish and 

Wildlife Service (USFWS) completed a 

status review report on Atlantic 

sturgeon (Acipenser oxyrinchus 

oxyrinchus) in the United States. We, 

NMFS, have reviewed this status review 

report and all other best available 

information to determine if listing 

Atlantic sturgeon under the Endangered 

Species Act (ESA) as either threatened 

or endangered is warranted. The SRT 

recommended that Atlantic sturgeon in 

the United States be divided into the 

following five distinct population 

segments (DPSs): Gulf of Maine; New 

York Bight; Chesapeake Bay; Carolina; 

and South Atlantic, and we agree with 

this DPS structure. After reviewing the 

available information on the Carolina 

and South Atlantic DPSs, the two DPSs 

located within the NMFS Southeast 

Region, we have determined that listing 

these two DPSs as endangered is 

warranted. Therefore, we propose to list 

these two DPSs as endangered under the 

ESA. We have published a separate 

listing determination for the DPSs 

within the NMFS Northeast Region in 

today’s Federal Register. 

DATES: Comments on this proposed rule 

must be received by January 4, 2011. At 

least one public hearing will be held in 

a central location for each DPS; notice 

of the location(s) and time(s) of the 

hearing(s) will be subsequently 

published in the Federal Register not 

less than 15 days before the hearing is 

held. 

ADDRESSES: You may submit comments, 

identified by the XRIN 0648–XN50, by 

any of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail or hand-delivery: Assistant 

Regional Administrator for Protected 

Resources, NMFS, Southeast Regional 

Office, 263 13th Avenue South, St. 

Petersburg, FL 33701. 

• Facsimile (fax) to: 727–824–5309. 

Instructions: All comments received 

are considered part of the public record 

and will generally be posted to http:// 

www.regulations.gov. All Personal 

Identifying Information (i.e., name, 

address, etc.) voluntarily submitted may 

be publicly accessible. Do not submit 

Confidential Business Information or 

otherwise sensitive or protected 

information. We will accept anonymous 

comments (enter ‘‘n/a’’ in the required 

fields if you wish to remain 

anonymous). Please provide electronic 

attachments using Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. This proposed rule, the 

list of references, and the status review 

report are also available electronically at 

the NMFS Web site at http:// 

sero.nmfs.noaa.gov/pr/sturgeon.htm. 

FOR FURTHER INFORMATION CONTACT: 

Kelly Shotts, NMFS, Southeast Regional 

Office (727) 824–5312 or Marta 

Nammack, NMFS, Office of Protected 

Resources (301) 713–1401. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal will be as 

accurate as possible and informed by 

the best available scientific and 

commercial information. Therefore, we 

request comments or information from 

the public, other concerned 

governmental agencies, the scientific 

community, industry, or any other 

interested party concerning this 

proposed rule. We particularly seek 

comments concerning: 

(1) The abundance of Atlantic 

sturgeon in the various river systems in 

the Carolina and South Atlantic DPSs; 

(2) The mixing of fish from different 

DPSs in parts of their ranges, 

particularly in the marine environment; 

(3) Information concerning the 

viability of and/or threats to Atlantic 

sturgeon in the Carolina and South 

Atlantic DPSs; and 

(4) Efforts being made to protect 

Atlantic sturgeon in the Carolina and 

South Atlantic DPSs. 

Public Hearings 

One public hearing will be held in a 

central location for each DPS. We will 

schedule the public hearings on this 

proposal and announce the dates, times, 

and locations of those hearings, as well 

as how to obtain reasonable 

accommodations for disabilities, in the 

Federal Register and local newspapers 

at least 15 days before the first hearing. 

Background 

Initiation of the Status Review 

We first identified Atlantic sturgeon 

as a candidate species in 1991. On June 

2, 1997, NMFS and USFWS 

(collectively, the Services) received a 

petition from the Biodiversity Legal 

Foundation requesting that we list 

Atlantic sturgeon in the United States, 

where it continues to exist, as 

threatened or endangered and designate 

critical habitat within a reasonable 

period of time following the listing. A 

notice was published in the Federal 

Register on October 17, 1997, stating 

that the Services had determined 

substantial information existed 

indicating the petitioned action may be 

warranted (62 FR 54018). In 1998, after 

completing a comprehensive status 

review, the Services published a 12- 

month determination in the Federal 

Register announcing that listing was not 

warranted at that time (63 FR 50187; 

September 21, 1998). We retained 

Atlantic sturgeon on the candidate 

species list (and subsequently 

transferred it to the Species of Concern 

List (69 FR 19975; April 15, 2004)). 

Concurrently, the Atlantic States Marine 

Fisheries Commission (ASMFC) 

completed Amendment 1 to the 1990 

Atlantic Sturgeon Fishery Management 

Plan (FMP) that imposed a 20- to 40- 

year moratorium on all Atlantic 

sturgeon fisheries until the Atlantic 

Coast spawning stocks could be restored 

to a level where 20 subsequent year 

classes of adult females were protected 

(ASMFC, 1998). In 1999, pursuant to 

section 804(b) of the Atlantic Coastal 

Fisheries Cooperative Management Act 

(ACFCMA) (16 U.S.C. 5101 et seq.), we 

followed this action by closing the 

Exclusive Economic Zone (EEZ) to 

Atlantic sturgeon retention. In 2003, we 

sponsored a workshop in Raleigh, North 

Carolina, with USFWS and ASMFC 

entitled, ‘‘The Status and Management 

of Atlantic Sturgeon,’’ to discuss the 

status of sturgeon along the Atlantic 

Coast and determine what obstacles, if 

any, were impeding their recovery 

(Kahnle et al., 2005). The workshop 

revealed mixed results in regards to the 

status of Atlantic sturgeon populations, 

despite the coastwide fishing 


srobinson on DSKHWCL6B1PROD with PROPOSALS2