26488 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R4–ES–2008–0058; 92210–1117– 

0000–FY08–B4] 

RIN 1018–AV51 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Alabama Sturgeon 

(Scaphirhynchus suttkusi) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the Alabama sturgeon 

(Scaphirhynchus suttkusi) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

524 kilometers (326 miles) of river fall 

within the boundaries of the critical 

habitat designation. The critical habitat 

includes portions of the Alabama and 

Cahaba Rivers in Autauga, Baldwin, 

Bibb, Clarke, Dallas, Lowndes, Monroe, 

Perry, and Wilcox Counties, in 

Alabama. 

DATES: This rule becomes effective on 

July 2, 2009. 

ADDRESSES: This final rule and the 

associated final economic analysis are 

available on the Internet at http:// 

www.regulations.gov. Supporting 

documentation we used in preparing 

this final rule is available for public 

inspection, by appointment, during 

normal business hours, at the U.S. Fish 

and Wildlife Service, Alabama 

Ecological Services Field Office, 1208– 

B Main Street, Daphne, AL 36526; 

telephone 251/441–5858; facsimile 251/ 

441–6222. 

FOR FURTHER INFORMATION CONTACT: Jeff 

Powell, Aquatic Species Biologist, U.S. 

Fish and Wildlife Service, Alabama 

Ecological Services Field Office, 1208– 

B Main Street, Daphne, AL 36526; 

telephone 251/441–5858; facsimile 251/ 

441–6222. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800/877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

In this final rule, we intend to discuss 

only those topics directly relevant to the 

distribution of the Alabama sturgeon 

and the designation of its critical 

habitat. For more information on the 

species, refer to the final and proposed 

listing rules published in the Federal 

Register on May 5, 2000 (65 FR 26438), 

and on March 26, 1999 (64 FR 14676), 

respectively. 

Sturgeon is the common name used 

for large, bony-plated, primitive fishes 

in the family Acipenseridae which 

typically grow slowly and mature late in 

life. The Alabama sturgeon 

(Scaphirhynchus suttkusi) is the 

smallest of all the North American 

sturgeons, typically weighing only 1 to 

2 kilograms (2 to 4 pounds) at maturity. 

The head is broad and flattened shovellike at the snout, with a tubular and 

protrusive mouth. As with all sturgeon 

species, there are four barbels (whiskerlike appendages) located on the bottom 

of the snout in front of the mouth that 

are used to locate prey. Bony plates 

called scutes line the body in five rows, 

one on the back and two each on the 

middle and lower sides. Bony plates 

separated by sutures also cover the 

head. The body narrows abruptly to the 

rear-forming a narrow stalk between the 

body and tail. The upper lobe of the tail 

fin is elongated and ends in a long 

filament. Coloration of the upper body 

is light tan to golden yellow, with a 

creamy white belly. Sturgeon are longlived fishes. Although the life span of 

the Alabama sturgeon in the wild is 

unknown, Burke and Ramsey (1985) 

provided estimates on three individuals 

that ranged from 2 to 10 years of age. 

The Alabama sturgeon is endemic to 

rivers of the Mobile River Basin below 

the Fall Line (inland boundary of the 

Coastal Plain) (Mettee et al. 1996, p. 83; 

Boschung and Mayden 2004, p. 109). Its 

current range includes the Alabama 

River from R.F. Henry Lock and Dam 

downstream to the confluence of the 

Tombigbee River. The species is also 

known to survive in the Cahaba River. 

For information on range of the species, 

see the Criteria Used To Identify Critical 

Habitat section of this rule. 

Despite extensive and intensive 

efforts in the decade prior to its listing, 

only eight Alabama sturgeon were 

captured, or reported captured and 

released. These fish were collected from 

several locations in the Alabama River 

between Millers Ferry Lock and Dam 

and its confluence with the Tombigbee 

River (Rider and Hartfield 2007, p. 490). 

Since the 2000 publication of the final 

rule listing the species under the Act, 

two Alabama sturgeon have been 

captured or reported captured. One of 

these was captured, videotaped, and 

released by a fisherman in the lower 

Cahaba River in July 2000 shortly after 

publication of the final rule. The most 

recent capture was an individual 

collected from the Alabama River below 

Claiborne Lock and Dam on April 3, 

2007, by the Alabama Department of 

Conservation and Natural Resources 

(ADCNR). This fish was implanted with 

a sonic tag and released on April 17, 

2007, at the location where it was 

captured. 

Flows in the Alabama River are 

heavily influenced by upstream releases 

from Alabama Power Company and U.S. 

Army Corps of Engineers (USACE) 

hydropower projects, and riverine 

habitats are fragmented by Claiborne 

and Millers Ferry Locks and Dams. This 

386-kilometer (240-mile) stretch of the 

Alabama River, along with the lower 

Cahaba River, represents the last 

remaining viable habitat for the 

sturgeon. 

Previous Federal Actions 

On May 5, 2000, we listed the 

Alabama sturgeon as endangered under 

the Act (65 FR 26438). In that final 

listing rule, we determined that 

designation of critical habitat was 

prudent but that critical habitat was not 

determinable, due to the lack of 

information on the sturgeon’s biological 

and habitat needs. 

Following our listing decision, the 

Alabama-Tombigbee Rivers Coalition 

(Coalition) brought suit in the United 

States District Court for the Northern 

District of Alabama under the citizensuit provision of the Act and the judicial 

review provisions of the Administrative 

Procedure Act (5 U.S.C. 551 et seq.), 

alleging several defects in the listing 

process. The District Court dismissed 

the Coalition’s lawsuit for lack of 

standing, but on appeal, the U.S. Court 

of Appeals for the Eleventh Circuit 

reversed the District Court’s decision, 

concluding that the Coalition did have 

standing to challenge the listing 

decision. On remand, the District Court 

granted the United States’ motion for 

summary judgment but ordered us to 

issue both a proposed and a final rule 

designating critical habitat by May 14, 

2006, and November 14, 2006, 

respectively. Alabama-Tombigbee 

Rivers Coalition et al. v. Norton et al., 

No. CV–01–0194–VEH (Final Order, 

Nov. 14, 2005). The Coalition appealed 

and the District Court stayed the 

judgment pending review by the 

Eleventh Circuit. Under the direction of 

the District Court, we would have 2 

years from the time of the Eleventh 

Circuit’s decision to complete the 

designation of critical habitat. 

On February 8, 2007, the Eleventh 

Circuit affirmed the decision of the 

District Court, finding among other 

things that vacating the listing decision 

was not the proper remedy for failure to 

designate critical habitat. AlabamaTombigbee Rivers Coalition et al. v. 

Kempthorne et al., 477 F.3d 1250 (11th 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26489 

Cir. 2007). On May 16, 2007, the 

Eleventh Circuit issued its judgment as 

a mandate, thus lifting the stay imposed 

by the District Court and requiring us to 

issue a prudency determination and, if 

prudent, a proposed rule designating 

critical habitat within 1 year (May 16, 

2008), and a final rule designating 

critical habitat within 1 year after that 

(May 16, 2009). The Coalition sought 

Supreme Court review of the Eleventh 

Circuit’s decision; that request was 

denied on January 7, 2008. See 

Alabama-Tombigbee Rivers Coalition et 

al. v. Kempthorne et al., 128 S. Ct. 877 

(2008). 

We published the proposed 

designation of critical habitat for the 

Alabama sturgeon in the Federal 

Register on May 27, 2008 (73 FR 30361). 

That proposal had a 60-day comment 

period, ending July 28, 2008. On 

December 30, 2008, we announced the 

opening of a public comment period 

and the scheduling of a public hearing 

on the proposed revised designation of 

critical habitat for the Alabama sturgeon 

(73 FR 79770). We also announced the 

availability for public comment of a 

draft Economic Analysis (DEA) and an 

amended required determinations 

section of the proposal. In addition, we 

sought comment on our proposal to 

change the first primary constituent 

element (PCE) from its original 

description because we had determined 

that the original wording failed to 

indicate that the flow needs of the 

species are relative to the season of the 

year. The comment period was opened 

for 30 days from December 30, 2008, to 

January 29, 2008. We then published a 

notice on January 28, 2009 (FR 74 4912), 

extending the comment period to allow 

all interested parties an additional 

opportunity to comment after the public 

hearing that was also held on January 

28, 2009. This comment period closed 

on February 9, 2009. 

For more information on previous 

Federal actions or for more information 

on the endangered Alabama sturgeon or 

its habitat, refer to our proposed and 

final listing rules published in the 

Federal Register on March 26, 1999 (64 

FR 14676), and on May 5, 2000 (65 FR 

26438), respectively, or request copies 

of them from the Alabama Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). We are 

designating critical habitat in 

accordance with section 4(b)(2) of the 

Act. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the Alabama 

sturgeon during two comment periods. 

The first comment period associated 

with the publication of the proposed 

rule (73 FR 30361) opened on May 27, 

2008, and closed on July 28, 2008. We 

also requested comments on the 

proposed critical habitat designation 

and associated draft economic analysis 

during a comment period that opened 

December 30, 2008, was extended on 

January 28, 2009, and closed on 

February 9, 2009. We received two 

requests for a public hearing. We held 

a public hearing on January 28, 2009. 

We also contacted appropriate Federal, 

State, and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule and draft economic 

analysis during these comment periods. 

During the first comment period, we 

received 12 comment letters directly 

addressing the proposed critical habitat 

designation. During the second 

comment period, we received 22 

comment letters addressing the 

proposed critical habitat designation or 

the draft economic analysis. During the 

January 28, 2009, public hearing, 11 

individuals or organizations made 

comments on the designation. All 

substantive information provided 

during comment periods has either been 

incorporated directly into this final 

determination or addressed below. 

Comments received were grouped into 

four general issues specifically relating 

to the proposed critical habitat 

designation for Alabama sturgeon and 

are addressed in the following summary 

and incorporated into the final rule as 

appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from three knowledgeable individuals 

with scientific expertise that includes 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

all three of the peer reviewers. 

We reviewed all comments received 

from the peer reviewers for substantive 

issues and new information regarding 

critical habitat for the Alabama 

sturgeon. The peer reviewers generally 

concurred with our methods and 

conclusions and provided additional 

information, clarifications, and 

suggestions to improve the final critical 

habitat rule. Some reviewers suggested 

minor editorial changes. These have 

been incorporated into the final rule as 

appropriate. Specific peer reviewer 

comments are addressed in the 

following summary and are also 

incorporated into the final rule as 

appropriate. 

(1) Comment: One reviewer 

mentioned that in the rule we state the 

life span of the Alabama sturgeon is 

unknown, yet we then estimate 

individuals could live from 12 to 15 

years, possibly longer. 

Our Response: Although the life span 

of the Alabama sturgeon in the wild is 

unknown, Burke and Ramsey (1985) 

provided estimates on three individuals 

that ranged from 2 years to 10 years of 

age. In general, all sturgeon species are 

long-lived species, some may live longer 

than 15 years. 

(2) Comment: The reviewer 

understands that the critical habitat 

proposal must be based on the known 

range of the species at the time it was 

listed as ‘‘endangered’’, but suggests that 

it might be prudent to expand the 

section to match the species historical 

range. 

Our Response: According to section 3 

of the Act, critical habitat includes those 

areas that are occupied at the time of 

listing that contain the physical and 

biological features necessary for the 

conservation of the species. Areas not 

occupied at the time of listing can be 

included only if it is determined that 

they are essential to conservation of the 

species and that including only areas 

occupied at the time of listing in critical 

habitat may not be adequate to conserve 

the species. Based on our best available 

information (collection records and 

supporting PCEs), we have determined 

that such unoccupied areas are not 

essential to the conservation of the 

species. 

(3) Comment: Would habitat 

descriptions from recent collections of 

larval and juvenile pallid and 

shovelnose sturgeon in the Mississippi 

River be of use in trying to define the 

preferred habitats of larval and juvenile 

Alabama sturgeon in the Alabama 

River? 

Our Response: Yes. We considered all 

recently published information on these 

topics in the rule. 

(4) Comment: One reviewer suggests 

that there has been a gradual decline in 

the Alabama River discharge recently. 

They referenced the continued lowering 

of an industry’s intake pipes to account 

for the river’s decreasing stage. 

Our Response: This is likely the result 

of the drought over the last two years, 

or, an increase in upstream 

withdrawals. We recommend referring 

the issue of lowered industry intake 

pipes to the Alabama Office of Water 

Resources. 

(5) Comment: One reviewer noted that 

the sonic-tagged Alabama sturgeon was 

26490 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

released on April 17, 2007, not May 

2007. 

Our Response: We appreciate the 

correction. We have corrected this in the 

final rule. 

(6) Comment: One reviewer stated 

that they received a credible report from 

an angler that caught an Alabama 

sturgeon below R.F. Henry Lock and 

Dam on April 11, 2008. 

Our Response: This report was 

considered in the rule. 

(7) Comment: One reviewer stressed 

the importance of river connectivity. 

The reviewer then stated the primary 

reason the species is endangered is 

habitat fragmentation caused by large 

dams on the Alabama River, and that 

fish bypass or fish passage opportunities 

should be explored further. 

Our Response: Habitat fragmentation 

was one of the primary reasons for 

listing the species, and we will continue 

to work with our partners to address 

fish passage in the Alabama River. 

(8) Comment: One reviewer suggests 

that higher flows from R.F. Henry could 

potentially attract Alabama sturgeon, 

especially in the winter and spring 

when the species migrates upstream. 

Our Response: The comment is noted 

and we will continue to work with our 

partners to explore this possibility. 

(9) Comment: One reviewer agrees 

that the pallid and shovelnose sturgeons 

are acceptable surrogates for the 

Alabama sturgeon; the reviewer also 

suggests that sturgeon in the genera 

Pseudoscaphirhynchus and Acipenser 

also have similar life histories that 

could be applied to the Alabama 

sturgeon. This includes information on 

temperature and dissolved oxygen 

preferences, migration patterns, 

reproduction, age and growth, habitat 

preferences, and diet. 

Our Response: In the proposed rule, 

we stated that we would utilize 

information on the Alabama sturgeon’s 

closest two relatives, the pallid and 

shovelnose sturgeon. However, there are 

still considerable data gaps that could 

be filled by other sturgeon species. In 

this final rule, we use information 

resulting from research on other 

sturgeon species in the background 

sections where appropriate. 

(10) Comment: One reviewer suggests 

that ‘‘the distance of free-flowing habitat 

currently available is likely detrimental 

to the Alabama sturgeon, that is, there 

is likely NOT enough free-flowing 

habitat for larval development in the 

reservoirs above Claiborne and Millers 

Ferry locks and dams. The designation 

of critical habitat as outlined in the 

proposed rule and the revised proposed 

rule is necessary to protect the last 

remaining habitat for the Alabama 

sturgeon, but improvements in riverine 

habitat MUST be made in the Alabama 

River for migrating adults and drifting 

larvae if the species is to survive and 

eventually recover.’’ 

Our Response: While we designated 

areas meeting the definition of critical 

habitat, the area designated is 

essentially the best remaining habitat 

available for the species. We recognize 

the need to continue to improve 

conditions related to the distance of 

free-flowing habitat within designated 

critical habitat and elsewhere in the 

rivers (i.e., fish passage) and continue to 

work with our partners to do so. 

(11) Comment: One reviewer suggests 

that we spend more time discussing the 

potentially lethal effects of low 

dissolved oxygen levels. He states that 

levels of 3 milligrams per liter (mg/L) (3 

parts per million (ppm)) and water 

temperatures of 22–26° Celsius (C) (72– 

79° Fahrenheit (F)) appeared to be lethal 

for juvenile Atlantic and shortnose 

sturgeons. Allowing a minimum level of 

4 mg/L (4 ppm) in the Alabama River 

may be very close to a lethal level for 

the Alabama sturgeon. 

Our Response: We have used the best 

available science to determine the water 

quality needs of the Alabama sturgeon. 

We have reviewed the information in 

the proposed rule and determined that 

clarification of the fifth PCE was 

required to more clearly state that 

situations involving dissolved oxygen of 

less than 5 mg/L (5 ppm) would not be 

the norm within the river. We have 

clarified the fifth PCE to state, 

‘‘dissolved oxygen levels shall not be 

less than 5 mg/L (5 ppm); except under 

extreme conditions due to natural cause 

or downstream of existing hydroelectric 

impoundments, where it can range from 

5 mg/L to 4 mg/L (5 ppm to 4 ppm), 

provided that the water quality is 

favorable in all other parameters.’’ 

Comments From States 

Section 4(i) of the Act states, ‘‘the 

Secretary shall submit to the State 

agency a written justification for his 

failure to adopt regulations consistent 

with the agency’s comments or 

petition.’’ Comments received from the 

State regarding the proposal to designate 

critical habitat for the Alabama sturgeon 

are addressed below. 

During the first comment period, we 

received comments from both the States 

of Georgia and Alabama disagreeing 

with the inclusion of 131.4 cubic meters 

per second (cms) (4,640 cubic feet per 

second (cfs)). Following the revision, 

both States agreed with the first PCE as 

it appears in the final rule. 

(12) Comment: The State of Georgia 

recommends that the Service engage in 

a NEPA analysis in order to fully 

address the impact of this rule. 

Our Response: It is our position that, 

outside the jurisdiction of the United 

States Court of Appeals for the Tenth 

Circuit, we do not need to prepare 

environmental analyses as defined by 

NEPA (42 U.S.C. 4321 et seq.) in 

connection with designating critical 

habitat under the Act. We published a 

notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld by the United 

States Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

(13) Comment: The State of Georgia 

requested that the lateral extent of the 

proposed critical habitat should be 

clarified, and identification of activities 

that may cause stages in the Alabama 

and Cahaba Rivers to decline below the 

‘‘ordinary high water mark.’’ 

Our Response: For the purpose of this 

rule, we have applied the definition for 

‘‘ordinary high water mark’’ found at 33 

CFR 329.11 as ‘‘the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as clear, natural line 

impressed on the bank; shelving; 

changes in the character of the soil; 

destruction of terrestrial vegetation; the 

presence of litter and debris; or other 

appropriate means that consider the 

characteristics of the surrounding 

areas.’’ It is our position that the 

‘‘ordinary high water mark’’ does not 

imply that consultation is required 

every time the river stage falls below 

that point. As stated in the ‘‘Application 

of the ‘‘Adverse Modification’’ 

Standard’’ section, activities that cause 

declines in flow, resulting in a decline 

in river stage, will be evaluated on a 

case by case basis. Activities that may 

cause stages to decline include, but are 

not limited to, drought conditions and 

excessive water withdrawals. 

(14) Comment: The State of Alabama 

noted that they are committed to 

continuing to work with the Service, 

USACE, and other agencies to develop 

a drought operations plan (Alabama 

Drought Operations Procedure— 

ADROP) for the Alabama River. 

Our Response: We appreciate the 

proactive steps Alabama has taken to 

begin development of a drought 

operations plan for the Alabama River. 

We believe this is an important step to 

ensuring all stakeholders fully 

understand the minimum flow 

requirements that may be imposed 

during future drought events. 

(15) Comment: The Alabama 

Governor’s Office stated that any flow 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26491 

requirement for the designated critical 

habitat needs to be flexible enough to 

realistically deal with drought 

conditions. 

Our Response: We appreciate the 

Office of the Governor’s concern with 

this matter. We will continue to work 

with all stakeholders and regulatory 

agencies to the best of our ability to 

ensure that this will happen. We also 

will continue working with the State, 

Industry, and the USACE to finalize a 

drought operations plan for the 

Alabama-Coosa-Tallapoosa (ACT) Basin 

that has an Adaptive Management 

Approach. 

Public Comments 

(16) Comment: One commenter 

questioned why is it going to take a year 

to complete the designation. 

Our Response: On May 16, 2007, the 

Eleventh Circuit issued its judgment as 

a mandate, requiring the Service to issue 

a prudency determination and, if 

prudent, a proposed rule designating 

critical habitat within one year (May 16, 

2008), and a final rule designating 

critical habitat within one year after that 

(May 16, 2009). Alabama-Tombigbee 

Rivers Coalition et al. v. Kempthorne et 

al., 477 F.3d 1250 (11th Cir. 2007). We 

needed all of the time allowed by the 

court to review the best scientific 

information about the species, allow for 

public participation in the process, 

conduct an economic analysis, reviewed 

comments, and coordinate with 

stakeholders on the designation. 

(17) Comment: One commenter 

clearly voiced his objection to this 

designation, stating that it is, ‘‘a waste 

of time for good people, blowing 

taxpayers’ money and unacceptable 

Federal interference with citizen 

activity and economic growth.’’ 

Our Response: This action was courtordered and non-discretionary. On May 

16, 2007, the Eleventh Circuit issued its 

judgment as a mandate, requiring the 

Service to issue a prudency 

determination and, if prudent, a 

proposed rule designating critical 

habitat within one year (May 16, 2008), 

and a final rule designating critical 

habitat within one year after that (May 

16, 2009). Alabama-Tombigbee Rivers 

Coalition et al. v. Kempthorne et al., 477 

F.3d 1250 (11th Cir. 2007). 

(18) Comment: One commenter states 

that, ‘‘the damage to the Alabama River 

and the Alabama Sturgeon were done 

without intention, to disregard further 

damage to Alabama ecosystems would 

be an ignorant disregard for current 

environmental science. The building of 

Claiborne Lock and Dam, and the 

subsequent disruption of the Alabama 

River ecosystem, has had negligible 

economic benefit in Alabama, but 

protection of the remaining wild places 

we have will have positive effects for 

tourism and environmental quality.’’ 

Our Response: Comment noted. 

(19) Comment: The Birmingham 

Audubon Society fully supports the 

designation and also states that the 

economic impact of this designation is 

not likely to be a serious burden. 

Our Response: Comment noted. 

(20) Comment: One commenter stated 

the USACE’s locks and dams on the 

Alabama River are not meeting their 

intended purpose (approximately 3 

boats per month use the locks) and are 

a waste of Federal dollars. The 

commenter then states ‘‘why not allow 

these poor counties where this 

waterway goes through—give them the 

one to two million dollars it takes to 

maintain these locks. Let them put that 

into economic development 

commissions for the counties and let 

them decide how to develop their own 

economy.’’ 

Our Response: Comment noted. 

(21) Comment: One commenter 

recommended that the Service engage in 

a NEPA analysis in order to fully 

address the impact of this rule. 

Our Response: See response under 

Comment (14). 

(22) Comment: The Cahaba River 

Society (CRS) fully supports the 

designation. They recommend 

extending the designation an additional 

25 kilometers (km) (16 miles (mi)) of the 

Cahaba River; upstream to the Cahaba 

National Wildlife Refuge, as well as the 

Alabama River above R.F. Henry Lock 

and Dam, up the Coosa River to Jordan 

Dam, and up the Tallapoosa River to 

Thurlow Dam. 

The CRS believes that this and other 

critical habitat designations will be a 

powerful tool for improving 

understanding among developers, 

builders, and land-use decision-makers 

about the importance of natural flow 

regimes, morphology and stability of 

river channels, the value of free-flowing 

habitat, and the significance of water 

chemistry to maintain a healthy river 

fauna that otherwise will not be 

confronted. The CRS goes on to state 

that, ‘‘in the long run, the educational 

value of designating critical habitat is 

among the most important of the 

benefits attained.’’ 

Our Response: Based on the best 

available scientific information, we have 

concluded at this time that the lower 

Coosa and Tallapoosa Rivers were not 

occupied at the time of listing. The last 

Alabama sturgeon records we have from 

these rivers are prior to the 

impoundments on the Alabama River. 

The current upper boundary on the 

Cahaba River was based on the general 

location of the ‘‘fall line’’ and has been 

used as such for other species (e.g., in 

the critical habitat for three threatened 

mussels and eight endangered mussels 

in the Mobile River Basin (69 FR 

40083)). If information becomes 

available that sturgeon were utilizing 

these stretches at the time of listing, or 

that this area is essential to the 

conservation of the sturgeon, this rule 

could then be revised based on the new 

information. 

(23) Comment: One commenter stated 

that ‘‘given the absence of the species in 

large areas of the proposed critical 

habitat we recommend additional 

clarification is provided that clearly 

states how such areas are essential for 

the conservation of the species.’’ 

Our Response: We agree that certain 

areas might not appear to be occupied 

some of the time; however, sturgeons 

are not stationary species. It is not 

uncommon for some species to migrate 

up to 578 km (359 mi) to spawn, and 

then drift another 240 km (149 mi) as 

larvae develop (DeLoney et al. 2007; 

Hrabik et al. 2007). We believe the 

entire unit, as designated, was occupied 

at the time of listing and contains one 

or more PCEs throughout the unit. 

Therefore, the areas designated meet the 

definition of occupied critical habitat as 

set forth in the Act. 

(24) Comment: Two commenters 

believe the Service lacks the 

information to support that Alabama 

sturgeon could occupy the Cahaba River 

and impounded areas above Claiborne, 

Millers Ferry, and R.F. Henry lock and 

dams. 

Our Response: In July 2000, an 

Alabama sturgeon was collected near 

the mouth of the Cahaba River, and we 

have reliable information that an 

individual was collected and released in 

April 2008 by an angler immediately 

below R.F. Henry Dam. Additionally, 

based on our best available knowledge 

of other sturgeon species, these 

individuals will move considerable 

distances from the points at which they 

were collected. Although we do not 

have recent records from the Claiborne 

pool, it contains one or more PCEs and 

is contiguous with occupied habitats 

upstream and downstream; we conclude 

it was used by the species in its 

movements up and down the river at the 

time of listing. 

(25) Comment: One commenter 

believes our approach to identifying the 

physical and biological requirements of 

the Alabama sturgeon is ‘‘flawed’’ 

because we state that we use 

information on the pallid and 

shovelnose sturgeon. 

26492 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

Our Response: The Alabama sturgeon 

is an extremely rare species and little 

information is available about its 

physical and biological requirements. 

Therefore, as required by the Act, we 

used the best available information 

which was generated mainly through 

the studies of two of its closest relatives, 

the pallid and shovelnose sturgeon. 

Considerable information has been 

recently published about the pallid and 

shovelnose (cited in the proposed rule), 

and that information was used as a basis 

for many of the assumptions made for 

the physical and biological 

requirements. We believe that this is the 

best scientific data available as required 

by the Act. 

(26) Comment: One commenter 

questioned our use of ‘‘stable’’ in PCE 

Number 2. They also question the 

association of mussel beds with stable 

substrates. 

Our Response: For the purpose of this 

analysis, stable refers to consolidated 

bed materials that contain substrate 

materials that are somewhat embedded 

and not easily moved. The presence of 

mussel beds in these areas is simply 

used to illustrate that these areas have 

not likely been disturbed in the recent 

past. 

(27) Comment: One commenter did 

not understand how the fourth PCE 

could apply to impounded areas of the 

Alabama River, because of the presence 

of Claiborne, Millers Ferry, and R.F. 

Henry Locks and Dams. 

Our Response: We are not implying 

that the impounded areas contain the 

fourth PCE. Presence of all PCEs is not 

required for designation. We believe the 

entire unit, as designated, was occupied 

at the time of listing and contains one 

or more PCEs throughout the unit. 

Therefore, the areas designated meet the 

definition of occupied critical habitat as 

set forth in the Act. 

(28) Comment: One commenter 

recommended the Service exclude all 

existing Federally-maintained channels, 

marinas, boat ramps, public swimming 

areas and docking facilities within the 

specified reach, existing within-bank 

dredged material disposal areas, and 

Federal reservoirs, locks and dams, 

because of the importance of navigation 

and recreation on the Alabama River 

and hydropower generation by Federal 

power plants. 

Our Response: As was stated in the 

proposed rule (73 FR 30373), critical 

habitat does not include manmade 

structures (such as buildings, aqueducts, 

docks, dams, runways, roads, and other 

paved areas) and the land or waterway 

on which they are located within the 

legal boundaries of this rule. However, 

this language does not include 

waterways (i.e., Federal reservoirs), 

public swimming areas, and existing 

within-bank dredging material disposal 

areas that are owned by the State of 

Alabama, found to be occupied at the 

time of listing, and to contain one or 

more PCEs needed by the Alabama 

sturgeon; which is why these areas have 

been included within the designation. 

(29) Comment: One commenter was 

unclear how or when section 7 

consultation would be required. 

Our Response: As stated in the final 

rule, section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuit Courts of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 442 

(5th Cir. 2001)), and we do not rely on 

this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the provisions of the Act, 

we determine destruction or adverse 

modification on the basis of whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional (or 

retain those PCEs that relate to the 

ability of the area to periodically 

support the species) to serve its 

intended conservation role for the 

species. Please refer to the Section 7 

Consultation section of the rule below 

for further discussion. 

Comments About Flow and Water 

Management 

The majority of the comments during 

the initial comment period (ending July 

27, 2008) were specific to the first PCE, 

especially the 131.4 cms (4,640 cfs) flow 

requirements. As stated in the revised 

rule (73 FR 79772), we removed the 

131.4 cms (4,640 cfs) from the first PCE 

because we believed focusing on 131.4 

cms (4,640 cfs) failed to account for the 

complexity of variables that needs to be 

analyzed to determine effects to the 

sturgeon. 

(30) Comment: We received a total of 

eight written comments during the 

initial comment period (ending July 28, 

2008) that addressed flow and the value 

included in the first PCE (131.4 cms 

(4,640 cfs)). All comments, in various 

ways, specifically questioned the 

biological relevance of the 131.4 cms 

(4,640 cfs) flow. 

Our Response: We have historically 

and consistently maintained that a 7- 

day average minimum flow of 131.4 cms 

(4,640 cfs) in the Alabama River at 

Montgomery is ‘‘adequate to sustain the 

Alabama sturgeon during periods of 

drought.’’ Proposals to allow flows to go 

below that level are likely to continue 

to occur during drought conditions (but 

could be proposed at other times) and 

we would recommend Federal agencies 

enter into consultation on such 

proposals whenever they occur because 

adverse effects are possible. We agree 

that the flow was not created as a 

‘‘sturgeon’’ flow, but rather a 

‘‘navigation’’ flow. The origin of the 

131.4 cms (4,640 cfs) can be traced back 

to a 1972 letter from Alabama Power 

Company (APC) to the USACE where 

APC concurs that a 7-day average flow 

of 131.4 cms (4,640 cfs) is acceptable for 

a trial period. It goes on to state that the 

131.4 cms (4,640 cfs) is based on the 

7Q10 for the USGS Gage at 

Montgomery. 

We revised the proposed rule in order 

to better clarify our position on the 

131.4 cms (4,640 cfs) flow. The revision 

changed the first PCE to the following: 

A flow regime (i.e., the magnitude, 

frequency, duration, seasonality of discharge 

over time) necessary to maintain all life 

stages of the species in the riverine 

environment, including migration, breeding 

site selection, resting, larval development, 

and protection of cool water refuges (i.e., 

tributaries). 

We changed the first PCE from its 

original description, because we 

determined that the original wording 

failed to indicate that the flow needs of 

the species are relative to the season of 

the year. For example, sturgeon likely 

need a higher flow in the spring to 

successfully spawn than was indicated 

by the 131.4 cms (4,640 cfs) in the 

original PCE. Also, we determined that 

it was more descriptive and helpful to 

potential action agencies to describe the 

flow habitat needs of the species in 

relation to their seasonality and how 

those seasonal flows allow for 

maintenance of all life stages. Lastly, we 

determined that while we believe flows 

lower than 131.4 cms (4,640 cfs) may 

involve adverse affects to the species 

(and therefore we will continue to 

recommend consultation), depending 

upon other factors, lower flows may or 

may not be found to result in 

measurable adverse effects. Therefore, 

focusing on 131.4 cms (4,640 cfs) in the 

PCE fails to account for the complexity 

of variables that need to be analyzed to 

determine effects to the sturgeon. We 

will continue to use 131.4 cms (4,640 

cfs) as a trigger for section 7 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26493 

consultation, but not necessarily a 

threshold for adverse modification. 

(31) Comment: One commenter 

indicated the Service has not 

demonstrated why additional 

requirements or regulatory PCEs (for 

flows) are necessary for water quality. 

Our Response: It was not our intent to 

designate additional flow requirements 

in order to ensure State water quality 

compliance. As stated by the commenter 

with this question, it is the 

responsibility of the Alabama 

Department of Environmental 

Management (ADEM) to ensure Clean 

Water Act compliance through the 

issuance and enforcement of National 

Pollution Discharge Elimination System 

(NPDES) permits. 

(32) Comment: APC noted that they 

are committed to continuing to work 

with the Service, USACE, and other 

agencies to develop a drought 

operations plan (Alabama Drought 

Operations Procedure—ADROP) for the 

Alabama River. 

Our Response: We appreciate the 

proactive steps APC has taken to begin 

development of a drought operations 

plan for the Alabama River (i.e., 

ADROP). We believe this is an 

important step to ensuring all 

stakeholders fully understand the 

minimum flow requirements that may 

be imposed during future drought 

events. 

(33) Comment: APC presented 

summaries of the data (discharge, 

temperature, and dissolved oxygen 

levels) they collected on August 5, 2008, 

and October 21, 2008, at various 

locations on the Alabama River 

downstream of Claiborne Lock and 

Dam. One of these locations was a 

USACE dredge site that has been 

dredged the last two years and has been 

routinely occupied by the tagged 

Alabama sturgeon. They concluded that 

temperature and dissolved oxygen 

levels were fairly well mixed at these 

locations and further suggested that the 

tagged fish may not be adversely 

affected by dredging. 

Our Response: We appreciate APC’s 

efforts to analyze flow, temperature, and 

dissolved oxygen levels in these areas. 

This information will be very useful as 

we analyze habitats that have been 

occupied by the tagged fish. However, 

upstream of Claiborne Lock and Dam 

conditions are likely quite different and 

will likely yield very different results. 

Upstream of the dams (Claiborne and 

Miller Ferry) conditions very much like 

a reservoir and are not as well mixed as 

areas downstream of Claiborne Lock and 

Dam, which receives a constant flow 

from the crested spillway. Therefore it 

would not be a fair comparison to 

correlate these results with upstream 

areas that do not receive a constant 

flow. 

(34) Comment: The USACE believes 

the Memorandum of Agreement (MOA), 

which includes the 1994 ‘‘White Paper’’, 

has served to protect the Alabama 

sturgeon and its habitat. They believe 

that the MOA should be referenced in 

the rule, acknowledging its protective 

value. They believe it should continue 

to be adhered to in absence of newer 

biological information. 

Our Response: The 1994 ‘‘White 

Paper’’ is referenced in several locations 

in the rule and we will continue to use 

it. However, we will also modify it as 

needed and make future decisions based 

on the best available science. 

(35) Comment: Although the USACE 

agrees with the proposed changes to the 

first PCE, they state that, ‘‘if data exist 

to support the designation of a flow 

regime, then a detailed flow regime 

should be fully described in the PCE 

with references to supporting studies.’’ 

They go on to say, ‘‘without a fully 

described flow regime, the PCE remains 

flawed, providing uncertain protection 

to the species as well as uncertain 

economic impacts.’’ 

Our Response: We do not believe a 

specific flow measurement would be 

applicable at all times of the year and 

we do not have the data to support a 

fully described flow regime. Our 

position continues to support a variety 

of natural, seasonably variable flows 

that allow for maintenance for all life 

stages of the sturgeon. In order to 

develop a seasonably variable set of 

flow estimates for the species, we need 

long-term stream gauging records and a 

continuous water quality monitoring 

network at several points on the 

Alabama River. At this time, there are a 

limited number of long term discharge 

records for the Alabama River. The 

station with the longest period of record 

(67 years) is the USGS station at 

Montgomery (station ID 0242000). We 

welcome the opportunity to partner 

with the USACE to begin developing a 

long term discharge and water values 

study. 

(36) Comment: The APC had several 

comments about flow requirements and 

the analysis they conducted on the data 

from the tagged Alabama sturgeon 

below Claiborne Lock and Dam, these 

include: 

(a) ‘‘The relationship of flow to the 

specimen’s needs is inconclusive’’ and 

there is ‘‘no basis to identify any one 

ideal flow for the Alabama sturgeon.’’ 

(b) ‘‘The specimen’s behavior is not 

consistent with the second PCE.’’ Also, 

the behavior of the tagged fish does not 

indicate a preference for deep pools 

habitats. 

(c) ‘‘There is a significant correlation 

between the tracked specimen’s location 

and historic dredging sites.’’ 

Our Response: (a) We agree that 

identifying one ideal flow is extremely 

difficult and may not, in the long run, 

be the most beneficial recommendation 

for the sturgeon. As stated in 

clarification letter to Industrial 

Economics (IEc) on October 22, 2008, 

we believe that flow needs for the 

species are relative to the season of year. 

We removed the 131.4 cms (4,640 cfs) 

from the first PCE to reflect this need for 

flow seasonality. 

(b) Our statement in the rule indicated 

that the Alabama sturgeon ‘‘prefers’’ a 

river channel with stable sand and 

gravel river bottoms, and bedrock walls, 

including associated mussel beds. This 

doesn’t mean that they always occur in 

these habitats. The conclusions drawn 

by APC are based upon data taken from 

one fish. Based on the best available 

scientific information on other North 

American sturgeon species, sturgeons 

do prefer these optimal conditions. 

(c) While we appreciate the effort of 

APC to summarize and share their 

assessments of the tracking data, we do 

not completely agree that dredging 

creates favorable conditions for the 

sturgeon. The tagged sturgeon below 

Claiborne Lock and Dam is likely 

occupying this section of the river 

because of temperature (flow from 

Sizemore Creek) or food resources. We 

do agree with APC’s hypothesis that 

adult sturgeon can exist under a variety 

of conditions, and focusing on spawning 

season and the particular needs of eggs 

and larvae may ultimately have a greater 

effect on long term survival than 

measures that focus on adult specimens. 

We welcome the opportunity to work 

with APC to explore these ideas. 

Comments About the Science Used in 

This Designation 

(37) Comment: The AlabamaTombigbee Rivers Coalition (ATRC) 

urges the Service to acknowledge the 

serious limitations in its scientific 

knowledge of the Alabama sturgeon and 

its life cycle requirements. They 

maintain virtually nothing is known 

about where it breeds, spawns, and 

what they do after hatching. 

Our Response: We certainly recognize 

that our knowledge base is limited with 

the Alabama sturgeon. However, that is 

why we have elected to use the best 

available scientific information on two 

of its closest relatives, the pallid and 

shovelnose sturgeon. 

(38) Comment: One commenter, 

representing the ATRC, agrees that the 

26494 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

Service ‘‘was justified by selecting the 

shovelnose and pallid species as 

surrogates to extrapolate the biological 

and physical information for the 

Alabama sturgeon.’’ However, the 

commenter also suggests that there is 

little to no useful, documented 

information available to validate the 

information we used in the 

development of the PCEs. Specifically, 

the commenter questioned the lack of 

information related to the effects of river 

flow on spawning, spawning behavior, 

migration and aggregation at spawning 

sites, or egg deposition; substrate 

preferences; growth rates; and diet of 

the Scaphirhynchus species. 

Our Response: We respectfully 

disagree with the commenter’s belief 

about a lack of useful information on the 

shovelnose and pallid sturgeon. In 2007, 

the Journal of Applied Ichthyology 

published an entire volume dedicated to 

the biology and conservation of the 

three North American riverine sturgeons 

(Volume 23 Issue 4, Pages 289–538 

(August 2007)). Within this one volume 

there are 30 papers devoted exclusively 

to describing embryonic development, 

genetic variability, larvae distribution 

and dispersal, habitat use of during 

different flow patterns, gonadal 

development, evaluating spawning site 

success, age and growth, distribution 

and movements, and diet composition 

of larval and adult sturgeons of the 

North American river sturgeons. 

Although we recognize that there are 

still considerable data gaps in our 

knowledge of these rare fishes, 

especially in terms of life history 

requirements, we believe it is fair to 

assume two characteristics that all 

North American sturgeon species 

(Acipenser and Scaphirhynchus) have 

in common; that they spawn over hard 

substrates in swift water and that they 

all migrate upstream to spawn. The Act 

requires us to use the best available 

scientific information available and we 

have done this throughout the rule and 

especially in the development of the 

PCEs. 

(39) Comment: One commenter, 

representing the ATRC, commented 

that, ‘‘high spring flows may not be 

essential to stimulation of sturgeon 

spawning runs.’’ 

Our Response: Although there are 

differing opinions on which 

environmental cues are most important 

in stimulating sturgeon spawning 

movement, available literature generally 

agree on one factor; that all North 

American sturgeon spawn, or at least 

attempt to make spawning runs in the 

spring. In the Southeastern United 

States, this just happens to coincide 

with the wettest season and an extended 

photoperiod; therefore, we believe 

successful spawning cues are likely 

some combination of the above 

environmental factors, including high 

spring flows. 

(40) Comment: One commenter, 

representing the ATRC, commented that 

Alabama sturgeon use similar 

movements as shovelnose and pallid 

sturgeon, including low flow areas. The 

commenter also stated that, ‘‘low flow 

seems to be of little concern to the 

Alabama sturgeon, pallid sturgeon or 

shovelnose sturgeon.’’ 

Our Response: We agree. The fish we 

have been tracking does occupy low 

flow areas at certain times. We do not, 

however, have information to suggest 

that this is a desired or preferred 

condition at other times of the year. In 

addition, we know that higher flows are 

required during specific times of the 

year to initiate spawning migrations and 

to allow larvae to develop. 

(41) Comment: One commenter, 

representing the ATRC, made the 

following statement, ‘‘the Endangered 

Species Act requires that critical habitat 

designation must be based on the best 

scientific and commercial data 

available.’’ The commenter continued 

by stating the Service had failed in this 

regard by not referencing several 

publications. 

Our Response: We respectfully 

disagree that we failed to use the 

appropriate references. The literature 

cited list is available from the Alabama 

Ecological Services Field Office (See 

ADDRESSES) and represents the best 

scientific data available relevant to the 

Alabama sturgeon and this designation 

of critical habitat. 

(42) Comment: One commenter, 

representing the ATRC, describes in 

detail the chronology of the sonic-tagged 

Alabama sturgeon’s movements and 

patterns from April 2007 through 

October 2008. 

Our Response: We appreciate this 

summary of the movements of one fish, 

and have used it in the context of the 

rest of the best available information on 

the life history and biology of sturgeons. 

Comments About Navigation and 

Dredging 

(43) Comment: One commenter, 

representing the ATRC, stated that 

dredging could actually benefit the 

Alabama sturgeon in several ways. One 

of the examples used by the commenter 

is that dredging may actually create 

habitat by increasing water velocity in 

pool-like areas, thus increasing oxygen 

levels, cleaning the river bottom of silt 

and rotting leaves, and having a flushing 

effect on the river. 

Our Response: We recognize that 

some sturgeon species have proven to be 

adaptive animals, especially in the 

Mississippi River, but we do not believe 

the evidence supports that dredging will 

actually increase available habitat, 

thereby increasing the recovery 

potential of the Alabama sturgeon. 

(44) Comment: The ATRC urges the 

Service to avoid significant changes to 

current channel maintenance practices 

in the absence of specific, new 

information which provides a valid 

scientific basis to understand how and 

why it is necessary for conservation 

purposes. 

Our Response: We review the 

operations and maintenance dredging 

procedures on the Alabama River every 

five years and we believe the 

information in the ‘‘1994 White Paper’’ 

is correct until new information 

provides a valid basis to changing our 

findings on channel maintenance and 

other issues. We will continue to use the 

best available science in making 

decisions about this and other trust 

resources. 

Comments Related to the Economic 

Analysis 

(45) Comment: Several commenters 

believe that the economic analysis 

dramatically understates the true 

potential for adverse economic impacts, 

some believe by a factor of as much as 

100. Several of these commenters state 

that when there are uncertainties about 

the nature and breadth of regulatory 

impacts, the only way to identify the 

potential economic impact is to assume 

the worst-case scenario and determine 

economic impacts under those 

circumstances. Specifically, Troy 

University submitted an analysis that 

the rule has ‘‘the potential to destroy 

approximately $900 million in local 

output and over $1.6 billion in the 

overall U.S. economy.’’ 

Our Response: The commenters 

assume that a minimum water flow and 

a cessation of dredging activities in the 

Alabama River will result from critical 

habitat designation. They further 

assume that ongoing economic activities 

within the ACT Basin, such as 

navigation, hydropower operations, and 

industry production that relies on water 

transport (such as pulp and paper), will 

be curtailed following critical habitat 

designation. These eventualities appear 

improbable given the history of 

conservation efforts undertaken for the 

sturgeon to date, and the Service’s 

current expectation for future actions. 

Nonetheless, Section 3 of the final 

economic analysis (FEA) recognizes that 

should the Service, in the course of 

future consultations on river flows in 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26495 

extreme drought years, determine that 

higher flows are necessary to maintain 

suitable habitat conditions for sturgeon 

conservation, a variety of activities 

including commercial shipping, 

recreation, or hydropower may be 

impacted. In addition, a text box has 

been added to the economic analysis 

that describes the analysis submitted by 

the commenter. 

(46) Comment: One commenter states 

that the benefits of critical habitat 

designation outweigh the risks to the 

sturgeon caused by the designation by 

an enormous margin. The commenter 

adds that potential benefits include the 

value to medical research of having a 

fish that has survived since the Jurassic 

Period, a fully restored commercial 

fishery, and an attraction for historical 

and nature-based tourism (which is 

important for poor communities’ 

improvement). 

Our Response: As described in 

Section 1 of the FEA, because the 

Service believes that the direct benefits 

of the critical habitat rule are best 

expressed in biological terms, the 

analysis does not quantify or monetize 

benefits. However, a qualitative 

discussion of the potential categories of 

benefits of sturgeon conservation and 

critical habitat designation is provided 

in Section 7 of the FEA. 

(47) Comment: One commenter states 

that justification for not using inputoutput modeling is unsatisfactory 

because the use of input-output analysis 

is an accepted tool utilized extensively 

by Federal agencies. 

Our Response: As described in 

Section 1 of the FEA, regional economic 

impact analysis (commonly using 

regional input/output models) can 

provide an assessment of the potential 

localized economic impacts of 

conservation efforts. Specifically, 

regional economic impact analysis 

produces a quantitative estimate of the 

potential magnitude of the initial 

change in the regional economy 

resulting from a regulatory action. These 

models rely on multipliers that 

represent the relationship between a 

change in one sector of the economy 

(e.g., expenditures by recreators) and the 

effect of that change on economic 

output, income, or employment in other 

local industries (e.g., suppliers of goods 

and services to recreators). These 

economic data provide a quantitative 

estimate of the magnitude of shifts of 

jobs, revenues, and taxes in the local 

economy. However, for this analysis, 

quantified impacts associated with 

sturgeon conservation efforts primarily 

result in additional costs incurred due 

to short term shutdowns of dredging 

operations to avoid the sturgeon. 

Remaining quantified impacts to 

economic activities dependent upon 

water management (e.g., navigation or 

hydropower), water quality permitting 

(e.g., pulp and paper mills), and other 

activities are made up entirely of 

administrative costs of section 7 

consultations. Thus, measurable 

impacts of the type typically assessed 

with input-output models are not 

quantified in this analysis, and thus 

regional input-out modeling is not used. 

As stated above, Section 3 of the FEA 

recognizes that should the Service, in 

the course of future consultations on 

river flows in extreme drought years, 

determine that higher flows are 

necessary to maintain suitable habitat 

conditions for sturgeon conservation, a 

variety of activities including 

commercial shipping, recreation, or 

hydropower may be impacted. These 

impacts may in turn generate regional 

economic effects. 

(48) Comment: One commenter states 

that the DEA primarily gives 

consideration to agency costs as 

measured in staff time for engagement, 

but ignores third party costs. 

Our Response: The FEA explicitly 

considers potential impacts to all 

impacted parties, whether they are 

Federal agencies, local governments, or 

private parties. Exhibit 1–2 of the FEA 

presents the administrative cost 

estimates broken down into Service, 

Federal Agency, and third party costs. 

Section 3 of the FEA discusses potential 

impacts that could occur related to 

recreators, homeowners, and the 

navigation industry, among others, 

should additional river flows be 

required for the sturgeon. Section 4 of 

the FEA discuss potential impacts on 

NPDES permitees, such as the pulp and 

paper industry, to the extent that 

Alabama sturgeon encourages out-ofcompliance NPDES-permitted facilities 

to come into compliance sooner than 

would already have occurred absent the 

sturgeon. 

(49) Comment: One commenter states 

that IEc has found less than one percent 

of species (out of 113 endangered 

species analyses) actually would harm 

the economic environment (which was 

the Port of Los Angeles). 

Our Response: The economic analyses 

of critical habitat developed by the 

Service, including those developed by 

the Service’s economics consultants, are 

not intended to present a determination 

of economic harm. Instead, these 

analyses are intended to provide 

objective information on potential 

economic and other costs of 

designation, which the Secretary can 

then use in addressing the requirements 

of section 4(b)(2) of the Act. The 

commenter did not present any support 

for the conclusion that only one percent 

of the studies performed have found 

‘‘harm’’ to the economic environment. 

However, the Service notes that the 

reports produced by IEc and other 

economics consultants have addressed a 

wide-range of potential economic 

changes, both regional and national in 

scope, potentially resulting from 

designation of critical habitat. 

(50) Comment: One commenter states 

that the DEA may not meet 

recommended OMB standards because 

it does not consider regional growth 

rates or market conditions associated 

with potentially impacted industries. 

Our Response: The U.S. Office of 

Management and Budget’s (OMB) 

guidelines for conducting economic 

analysis of regulations direct Federal 

agencies to measure the costs of a 

regulatory action against a baseline, 

which it defines as the ‘‘best assessment 

of the way the world would look absent 

the proposed action’’ (U.S. Office of 

Management and Budget, ‘‘Circular A– 

4,’’ September 17, 2003, available at 

http://www.whitehouse.gov/omb/ 

circulars/a004/a-4.pdf.). In other words, 

the baseline includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the listing of the species. Impacts 

that are incremental to that baseline 

(i.e., occurring over and above existing 

constraints) are attributable to the 

proposed regulation, in this case the 

designation of critical habitat. As 

recommended by OMB, the baseline 

incorporates, as appropriate, trends in 

market conditions, implementation of 

other regulations and policies by the 

Service and other government entities, 

and trends in other factors that have the 

potential to affect economic costs and 

benefits, such as the rate of regional 

economic growth in potentially affected 

industries. In this analysis, the 

anticipated impacts are primarily 

administrative, with some impacts 

associated with temporary dredging 

shutdowns. The analysis discusses the 

way in which these impacts relate to the 

existing baseline conditions. 

(51) Comment: One commenter states 

that there will be little or no new 

economic development if the critical 

habitat is accepted as proposed. 

Our Response: The commenter 

presents no evidence to support this 

statement. 

(52) Comment: One commenter states 

that the counties surrounding the 

proposed critical habitat are 

economically depressed, 

disproportionately African-American, 

and in need of every possible strategic 

26496 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

advantage to attract new jobs. 

Designation would therefore violate the 

Council of Environmental Justice’s 

definition of environmental justice, in 

addition to imposing permanent 

economic impacts from which the 

region will never be able to recover. 

Our Response: Section 2 of the FEA 

presents demographic statistics on the 

potentially affected region. The critical 

habitat region does exhibit higher than 

average unemployment and poverty 

rates, and has higher minority 

populations than areas outside the 

region. Note that, as in Comment 45, the 

commenter assumes that ongoing 

economic activities within the ACT 

Basin, such as navigation, hydropower 

operations, and industry production 

that relies on water transport (such as 

pulp and paper), will be curtailed 

following critical habitat designation. 

These eventualities appear improbable 

given the history of conservation efforts 

undertaken for the sturgeon to date, and 

the Service’s current expectation for 

future actions. All quantified 

incremental impacts of critical habitat 

designation are administrative impacts 

of section 7 consultation, and would not 

be expected to disproportionately affect 

socio-economically disadvantaged 

groups. 

(53) Comment: One commenter states 

that the DEA fails to consider certain 

major impacts on the USACE’s channel 

maintenance activities, limits on 

industrial wastewater discharges, and 

limits on land use activities such as 

agriculture and silviculture. 

Our Response: The FEA considers 

impacts to maintenance dredging, 

industrial wastewater discharge, 

agriculture, and silviculture in Sections 

4 and 5. 

(54) Comment: One commenter states 

that additional flow requirements could 

have large economic impacts associated 

with navigation and hydropower 

generation throughout the basin. 

Associated potential impacts would 

depend on the magnitude of the 

requirement, timing, and prevailing 

drought-water budget interactions. 

Our Response: We agree. See 

Comment 45. 

(55) Comment: Several comments 

relate to barge traffic within the river. 

One commenter states that access to 

reliable water transportation provides a 

competitive advantage for the 

recruitment of new industry for this 

region and cannot be ignored. Another 

states that the use of barge transport for 

receiving fuel oil at their dock at the 

69th river mile saves them 

approximately $1 million each year in 

transportation costs. While another 

states that the DEA seriously 

underestimates the value of barge 

transportation to the region of the State, 

which is in a socio-economically 

disadvantaged area. 

Our Response: Sections 3 and 5 of the 

FEA discuss the water transportation 

industry in the Alabama River, and 

provide information on the value of the 

industry to the region based on data 

produced by the Coosa-Alabama River 

Improvement Association. However, the 

analysis does not anticipate large 

impacts on the barge transportation 

industry. Regarding the stated socioeconomic concerns, additional 

demographic information has been 

added to the FEA in Section 2. 

(56) Comment: One commenter states 

that Carters Lake and Lake Allatoona 

should be included in any discussions 

and analysis regarding the effects of 

upstream reservoir storage and flows in 

the Alabama River. 

Our Response: Carters Lake and Lake 

Allatoona have been incorporated into 

the discussion of potential impacts in 

Section 3 of the analysis. 

(57) Comment: One commenter states 

that an economic analysis on the APC 

FERC relicensing efforts should be 

conducted after consultation is 

complete in order to incorporate any 

agreed-upon minimum flow or drought 

plan. 

Our Response: The timeframe for 

publication of the critical habitat rule 

was required by the court and precedes 

the completion of the relicensing 

process for APC. We would agree that 

an analysis of impacts once that process 

is complete could provide additional 

information. 

(58) Comment: One commenter states 

that the DEA assumes the only 

additional costs to the USACE will be 

costs associated with consultation. The 

commenter adds that the USACE does 

incur shutdown costs without the 

critical habitat designation, and that 

within-bank disposal of dredged 

materials could also be affected. 

Our Response: Section 5 of the FEA 

discusses that impacts to the USACE are 

anticipated to include annual 

compliance costs incurred by the 

USACE to communicate and coordinate 

their upcoming activities to the Service 

at the beginning of each dredging 

season, as well as costs incurred by the 

USACE and its contractors related to 

temporary dredging shutdowns on 

average once per year between 2009 and 

2028. Because (1) the Service states in 

the critical habitat rule that only the 

dredging of consolidated materials 

should result in a ‘‘may affect’’ 

determination for sturgeon critical 

habitat and (2) the Service has 

confirmed through informal 

consultation with USACE every five 

years since 1994 that dredging of 

unconsolidated sediment will not 

adversely affect the sturgeon, the FEA 

finds that annual maintenance dredging 

of the Federal navigation channel in the 

Alabama River is not expected to be 

affected by the critical habitat rule, 

other than to continue to result in a fiveyear review of USACE dredging 

activities. With regard to potential 

impacts to within-bank disposal, 

Section 5.3.1 discusses that during the 

2008 five-year review, the Service did 

request that the USACE move one 

disposal site from a river mouth to 

another location in the channel, with 

limited impacts on operations. 

(59) Comment: One commenter states 

that the dredging shutdown costs for 

2007 and 2008 ($88,800 and $44,400) 

appear to be industry costs, and that 

they should be replaced with $25,620 

and $14,011 for 2007 and 2008, 

respectively. 

Our Response: At the time of the DEA, 

these USACE costs were not available. 

These have been incorporated into 

Section 5 of the FEA and total estimates 

have been revised accordingly. 

(60) Comment: One commenter states 

that it is reasonable to expect that 

dredging shutdowns will increase in 

frequency and duration as the sturgeon 

population recovers. In addition, the 

commenter states that it is also 

reasonable to expect that consultations 

will increase in frequency as the 

sturgeon population recovers. 

Our Response: No information is 

available about the rate at which the 

sturgeon will recover or whether such 

recovery will overlap with areas in 

which dredging takes place, or if fish 

will be tagged, so forecasting increased 

dredging shutdown frequency is not 

possible. The Service points out that a 

single tagged Alabama sturgeon 

currently exists. Unless additional 

sturgeon can be found and tagged, we 

do not expect more dredging shutdowns 

in the future. As the future population 

of Alabama sturgeon is not known, this 

analysis uses the recent past as an 

indicator of likely future rates of 

shutdowns. Nonetheless, a caveat has 

been added to Section 5 of the FEA that 

describes the commenter’s concern. 

(61) Comment: One commenter states 

that there are economic uncertainties 

involved in future consultations that 

should be captured as additional 

potential impacts. For example, FWS 

made recommendations for additional 

conservation measures following the 

critical habitat designation for the Gulf 

sturgeon, including the purchase and 

use of hydrophones to monitor the 

presence of tagged Gulf sturgeon. 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26497 

Our Response: The FEA 

acknowledges that uncertainty exists 

with regard to future conservation 

efforts likely to be undertaken for 

sturgeon. No specific additional 

recommendations have been identified 

that would pertain to sturgeon critical 

habitat. 

Summary of Changes From Proposed 

Rule 

1. We have changed the first PCE from 

the original description in our original 

proposal (73 FR 30361; and explained 

this change in a subsequent revised 

proposed rule at 73 FR 79770) because 

we have determined that the original 

wording failed to indicate that the water 

flow needs of the species are relative to 

the season of the year. Please refer to the 

Primary Constituent Elements (PCEs) for 

the Alabama Sturgeon section below for 

specific wording of the first PCE. 

2. We have further clarified a portion 

of the fifth PCE to: 

‘‘dissolved oxygen levels not less than 

5 mg/L (5 ppm), except under extreme 

conditions due to natural causes or 

downstream of existing hydroelectric 

impoundments, where it can range from 

5 mg/L to 4 mg/L (5 ppm to 4 ppm); 

3. We added a few recommendations 

in the ‘‘Special Management 

Considerations’’ section. These 

recommendations encourage finding 

alternative ways of increasing the 

amount of free-flowing habitat in the 

Alabama River that allow sturgeon and 

other migratory species to move freely 

between feeding, resting, and spawning 

grounds. 

Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(i) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features 

(I) Essential to the conservation of the 

species and 

(II) Which may require special 

management considerations or 

protection; and 

(ii) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered 

species or threatened species to the 

point at which the measures provided 

under the Act are no longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

non-Federal landowners. Where a 

landowner seeks or requests Federal 

agency funding or authorization for an 

action that may affect a listed species or 

critical habitat, the consultation 

requirements of section 7(a)(2) would 

apply, but even in the event of a 

destruction or adverse modification 

finding, the Federal action agency’s and 

the applicant’s obligation is not to 

restore or recover the species, but to 

implement reasonable and prudent 

alternatives to avoid destruction or 

adverse modification of critical habitat. 

To be included in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the features that are essential to 

the conservation of the species, and be 

included only if those features may 

require special management 

consideration or protection. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found those 

physical and biological features 

essential to the conservation of the 

species). Under the Act and our 

implementing regulations, we can 

designate critical habitat in areas 

outside of the geographical area 

occupied by the species at the time it is 

listed only when we determine that 

those areas are essential for the 

conservation of the species and that 

designation limited to those areas 

occupied at the time of listing would be 

inadequate to ensure the conservation of 

the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act, published in 

the Federal Register on July 1, 1994 (59 

FR 34271), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat designated at a particular 

point in time may not include all of the 

habitat areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions we implement 

under section 7(a)(1) of the Act. Areas 

that support populations are also subject 

to the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available scientific information at the 

time of the agency action. Federally 

funded or permitted projects affecting 

listed species outside their designated 

critical habitat areas may still result in 

jeopardy findings in some cases. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of these planning efforts calls 

for a different outcome. 

26498 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

Physical and Biological Features 

In accordance with section 3(5)(A)(i) 

and 4(b)(1)(A) of the Act and regulations 

at 50 CFR 424.12, in determining which 

areas within the geographical area 

occupied by the species at the time of 

listing to designate as critical habitat, 

we consider the physical and biological 

features essential to the conservation of 

the species that may require special 

management considerations or 

protection. We consider the physical 

and biological features to be the PCEs 

laid out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species. These include, but are 

not limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical geographical and ecological 

distributions of a species. 

We derive the specific PCEs for the 

Alabama sturgeon from the biological 

needs of this species as described in the 

Critical Habitat section of the proposed 

rule to designate critical habitat for the 

Alabama sturgeon published in the 

Federal Register on May 27, 2008 (73 

FR 30361), along with subsequent 

changes we describe above in the 

Summary of Changes from Proposed 

Rule section. 

Space for Individual and Population 

Growth and for Normal Behavior 

All river sturgeons (Scaphirhynchus 

spp.) are migratory and may migrate 

hundreds of kilometers to spawn. 

Generally, sturgeons migrate to optimize 

feeding and reproductive success. 

Downstream migrations are associated 

with feeding and upstream migrations 

are usually associated with spawning 

(Auer 1996, p. 153; Bemis and Kynard 

1997, p. 175). The newly hatched larvae 

of other river sturgeon are free-floating 

and may drift hundreds of kilometers 

before settling to a benthic (bottom) 

juvenile existence. Therefore, 

connectivity and availability of 

spawning areas and larval, juvenile, and 

adult feeding and growing habitats are 

necessary for the conservation of the 

species. 

Based on collection records, the 

species is known to inhabit the main 

channel of large coastal plain rivers of 

the Mobile River Basin. Specimens have 

been taken over a variety of substrates, 

including sand, gravel, and mud, from 

6 to 14 m (20 to 46 ft) deep (Williams 

and Clemmer 1991, p. 26). The USACE 

identified 30 locations in the Alabama 

River where 58 Alabama sturgeon were 

reportedly captured between 1950 and 

1998, and documented channel 

morphology and substrate types at 12 of 

the capture locations during low flow 

conditions. Substrates associated with 

these capture sites included sand, 

gravel, and limestone outcrops. All 

capture locations downstream of 

Claiborne Lock and Dam were either on 

or within 300 m (984 ft) of a sandbar. 

Most historical and recent sturgeon 

capture sites are at or near features 

presumably associated with feeding, 

reproduction, or refugia, and include 

rock walls, channel training devices, 

deep pools, mussel beds, and/or stable 

sand and gravel bottoms (Burke and 

Ramsey 1985, p. 53; Mayden and 

Kuhajda 1996, p. 257; Hartfield and 

Garner 1998, p. 4). The presence of 

mussel beds represents stable channel 

habitats with high aquatic invertebrate 

diversity and density that are likely 

important feeding areas for sturgeon; 

deeper holes may be used as thermal 

refugia during times of low flow and 

warmer temperatures (Hartfield and 

Garner 1998, p. 5). 

Data collected from a radio-tagged 

Alabama sturgeon, released in 1985 near 

Millers Ferry Lock and Dam on the 

Alabama River and tracked for 4 

months, showed that its preferred 

position was in swift current at a depth 

of 7.7 to 12.3 m (25 to 40 ft), but never 

at the deepest part at any location 

except where bottom contour was 

uniform (Burke and Ramsey 1985, p. 

32). Irwin et al. (2005, p. 5) and Kynard 

et al. (2007, p. 369) documented that 

adult shovelnose sturgeon are more 

active at night. This type of behavior 

was also observed in juvenile 

shovelnose sturgeon (Kynard et al. 2007, 

p. 369), and a similar pattern is 

currently being observed in the Alabama 

sturgeon collected in 2007 that is being 

tracked in the lower Alabama River 

(ADCNR and Service unpublished data 

2007, 2008). During daylight hours in 

the summer of 2007, this sturgeon 

remained in the deeper, flowing 

portions of the channel. However, 

during the late afternoon and early 

evening hours, the sturgeon moved into 

shallower habitats directly adjacent to a 

small perennial tributary. We have no 

evidence that the sturgeon moves into 

these tributaries; it may be taking 

advantage of cooler water found at the 

interface between the tributaries and the 

main stem of the river. The amount of 

time this tagged fish spent in these areas 

indicates these areas are important for 

feeding or for providing thermal refugia 

during the warmer summer months. 

Food 

Reports indicate that the species is an 

opportunistic bottom feeder (Mayden 

and Kuhajda 1996, p. 257; Williams and 

Clemmer 1991, p. 26; Burke and Ramsey 

1985, p. 35). Keevin et al. (2007, p. 500) 

conducted a stomach content analysis 

on 12 Alabama sturgeon individuals 

from museum collections and found 

aquatic insects and fish to be the 

predominant food items. This finding 

suggests a diet quite similar to the diets 

of the pallid and shovelnose sturgeons 

described by Gerrity et al. (2006, p. 606) 

and Hoover et al. (2007, p. 494). Except 

for the absence of fish in the diet of 

shovelnose sturgeon, all three species 

tended to feed on similar items, 

primarily aquatic insects. The insects 

identified in these studies are found 

over a variety of substrates, including 

soft and hard rocky bottoms; therefore, 

protection of most shallow-water habitat 

(shoals, gravel or sand bars) is essential 

to maintaining an acceptable food base. 

A distinct difference observed by 

Keevin et al. (2007, p. 502) in the diet 

of the Alabama sturgeon was the 

presence of ceratopogonids (biting 

midges) and siphlonurids (mayfly 

family). These small, aquatic larvae are 

very active, strong swimmers that tend 

to occupy the water column or areas 

near the surface (Keevin et al. 2007, p. 

502), indicating that the sturgeon may 

be a mid-water column feeder. Irwin et 

al. (2005, p. 39) found that juvenile 

shovelnose sturgeon overwhelmingly 

preferred feeding in sandy substrates 

and actively avoided gravel areas. It is 

unknown if this behavior is displayed 

by the Alabama sturgeon, but 2007 

tracking data suggest that the species 

may rest in the deeper, fast-flowing 

areas during the day and feed in 

shallow, sandy shoal areas at night 

(ADCNR and Service unpublished data). 

Water Quality 

Generally, most species of sturgeon 

are not as tolerant of low oxygen levels 

as other fishes; however, because of 

their benthic lifestyles, they are more 

likely to encounter areas with low levels 

of dissolved oxygen (Secor and 

Gunderson 1998, p. 611). Temperature 

and dissolved oxygen levels can affect 

sturgeon survival and growth, with early 

life stages being more sensitive to these 

variables than the adult stage (Secor and 

Gunderson 1998, p. 604). High levels of 

dissolved oxygen, as well as acceptable 

levels of other water quality parameters, 

are necessary for egg maturation and 

hatching, and larval and juvenile 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26499 

development. Poor water quality has 

even been linked to hermaphrodism in 

shovelnose and pallid sturgeon (U.S. 

Environmental Protection Agency 

(USEPA) 2007, p. 4). 

There are currently more than 1,600 

National Pollutant Discharge 

Elimination System (NPDES) permits 

issued within the Alabama River 

downstream of the Fall Line, which 

could impact sturgeon habitat. It is 

possible that some of these point-source 

discharges, along with other non-point 

sources of pollutants, could produce 

pollutant concentrations that may be 

harmful to the Alabama sturgeon. At the 

time of listing in May 2000, we believed 

that State water quality standards 

(which the State adopted from the 

national standards set by the USEPA) 

were protective of the Alabama sturgeon 

as long as discharges were within 

permitted limits and enforced according 

to the provisions of the Clean Water Act 

(Biggins 1994, p. 4). These water quality 

requirements were established with the 

intent to protect all aquatic resources 

within the State of Alabama and were 

presumed to be protective of the 

Alabama sturgeon. However, the Service 

is currently in consultation with the 

USEPA to evaluate the protectiveness of 

criteria approved in USEPA’s water 

quality standards for Alabama sturgeon 

and other threatened and endangered 

species and their critical habitats as 

described in the Memorandum of 

Agreement our agencies signed in 2001 

(66 FR 11201, February 22, 2001). Other 

factors that can potentially alter water 

quality are droughts and periods of low 

flow, non-point source runoff from 

adjacent land surfaces (e.g., excessive 

amounts of nutrients, pesticides, and 

sediment), and random spills or 

unregulated discharge events. This 

could be particularly harmful during 

drought conditions when flows are 

depressed and pollutants are more 

concentrated. Therefore, adequate water 

quality, quantity, and flow are essential 

for normal behavior, growth, and 

viability during all life stages of the 

sturgeon, including embryo 

development and hatching, and larval 

and juvenile development. 

Sites for Breeding, Reproduction, or 

Rearing (or Development) of Offspring 

The Alabama sturgeon is believed to 

reach sexual maturity between 5 and 7 

years of age. Spawning frequency of 

both sexes is likely influenced by food 

supply and fish condition, and may 

occur every 1 to 3 years. Similar to other 

river sturgeon, the Alabama sturgeon is 

believed to migrate upstream during the 

late winter and spring to spawn. These 

movements are likely extensive and 

cover long distances. 

The capture of 12 individuals 

(including several gravid females) 

during a single collection trip near the 

mouth of the Cahaba River on March 21, 

1969, suggests directional movements 

during the spawning season (Williams 

and Clemmer 1991, p. 27). Gravid 

females with ripe eggs have also been 

collected during late March, April, and 

early May, which may indicate a 

prolonged spring spawning or yearly 

variations in the occurrence of preferred 

spawning temperatures. Actual timing 

of spawning during this period may also 

vary depending on water temperature 

and river discharge. All sturgeon species 

produce eggs that are adhesive and 

require a current for proper 

development. Although specific 

locations at which eggs have been 

deposited have not been identified for 

the Alabama sturgeon, they are 

presumably similar to those of other 

river sturgeons, where eggs are 

deposited on hard bottom substrates 

such as bedrock, armored gravel, or 

channel training works in deep water 

areas, and possibly in some larger 

tributaries, such as the Cahaba River 

(Burke and Ramsey 1985, p. 53). 

Although no information about larval 

development exists for the Alabama 

sturgeon, we assume that the Alabama 

sturgeon may have needs similar to 

those of other river sturgeons, which 

require highly oxygenated, long 

stretches of free-flowing water for 

development. The larvae are planktonic, 

drifting with river currents for 12 to 13 

days after hatching, and exhibit a swimup and drift behavior while floating in 

currents (Kynard et al. 2007, p. 365). 

Research indicates that pallid sturgeon 

larvae can drift more than 200 km (124 

mi) during the first 11 days of the larval 

life stage, depending on water 

velocities, before settling to the benthic 

environment (Braaten and Fuller 2007, 

p. 1). It is unclear, at present, whether 

Alabama sturgeon require distances 

comparable to those exhibited by pallid 

sturgeon, but the life history strategy is 

thought to be the same. A further 

reduction in the distance of free-flowing 

habitat currently available would likely 

be detrimental to the sturgeon. 

Riverine Flows and Channel Stability 

Flows in the Mobile River Basin have 

been substantially altered from natural 

conditions due to the construction and 

operation of the large number of 

impoundments. Additionally, the river’s 

temperature, biogeochemical processes 

that would have occurred in the absence 

of the dams, and pollution assimilation 

capabilities have also been altered. 

Flowing water provides a means for 

transporting nutrients and food items, 

moderating water temperatures and 

dissolved oxygen levels, and diluting 

pollutants, as well as transporting and 

suspending developing sturgeon 

embryos and larvae. 

The quality of water, which comprises 

the sturgeon’s chemical habitat, is 

directly related to the volume of water 

present in the river. It affects sturgeon 

behavior, growth, and viability in all life 

stages. We have changed the first PCE 

from its original description because we 

have determined that the original 

wording failed to indicate that the flow 

needs of the species are relative to the 

season of the year. For example, 

sturgeon likely need a higher flow in the 

spring to successfully spawn than the 

131.4 cms (4,640 cfs) flow indicated in 

the original PCE. Also, we have 

determined that it is more descriptive 

and helpful to potential action agencies 

to describe the habitat needs of the 

species in relation to flow seasonality 

and how seasonal flows allow for 

maintenance of all life stages. Lastly, we 

have determined that while we believe 

flows lower than 131.4 cms (4,640 cfs) 

may involve adverse effects to the 

species (and therefore we will continue 

to recommend consultation), depending 

upon other factors, lower flows may not 

result in measurable adverse effects. 

Therefore, focusing on 131.4 cms (4,640 

cfs) in the PCE fails to account for the 

complexity of variables that need to be 

analyzed to determine effects to the 

sturgeon. 

Aquatic life, including fish, requires 

acceptable levels of dissolved oxygen. 

The type of organism and its life stage 

determine the level of oxygen required. 

Generally, among the fish, cold water 

species are the most sensitive, with 

young life forms being most critical. 

Dissolved oxygen levels of 3 mg/L (3 

ppm) and water temperatures of 22–26 

°C (72–79 °F) appeared to be lethal for 

juvenile Atlantic sturgeon (Secor and 

Gunderson 1998, p. 607). Temperature, 

another water quality parameter, is 

related to dissolved oxygen. The amount 

of dissolved oxygen that is present in 

water (the saturation level) depends 

upon water temperature. As the water 

temperature increases, the saturated 

dissolved oxygen level decreases. The 

more oxygen there is in the water, the 

greater the assimilative capacity (ability 

to consume organic wastes with 

minimal impact) of that water (Pitt 

2000, pp. 6–7). Biochemical oxygen 

demand (BOD) is the oxygen that would 

be required to stabilize the waste after 

its discharge into a body of water. 

Wastewater discharges that have a high 

BOD will have a much greater 

26500 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

detrimental effect on stream dissolved 

oxygen during critical summer months 

than they would during colder months. 

Summer months also have lower stream 

flow rates, which worsens the problem 

by further reducing the water’s 

assimilative capacity (Pitt 2000, pp. 6– 

7). In the worst case scenario, flows 

should be sufficient to meet State water 

quality standards, which ensure at least 

4 mg/L (4 ppm) of dissolved oxygen 

during low-flow periods and below 

hydropower operations, and 5 mg/L (5 

ppm) in other river reaches. 

During 2007 and 2008, the Alabama 

River Basin experienced the worst 

drought ever recorded. Although this 

drought is currently recognized as the 

worst drought in modern history, some 

researchers believe that it may not have 

been that unusual (B. Erhardt, USACE 

Meteorologist, pers. comm. 2008). Using 

bald cypress (a long-lived species) 

growth rings as an indication, the 2007– 

08 hydrologic period may have actually 

been more normal over the last 1,000 

years than conditions experienced over 

the last 40 years (which may have been 

exceptionally wet). Therefore, 

considering that sturgeon species have 

survived a range of hydrologic 

conditions over the years, we believe 

sturgeon are adapted to these periodic 

low-flow conditions, if poor water 

quality (from the Alabama River 

reservoirs) doesn’t further exacerbate 

the environmental stress levels to the 

sturgeon. Although the sturgeon we are 

currently tracking survived the 2007–08 

drought, we do not believe that the 

Alabama sturgeon is adapted to survive 

extended drought periods where water 

quality is compromised by excessive 

discharges that the river is unable to 

assimilate. More specifically, as 

described above, low-flow conditions 

affect the chemical environment 

occupied by the fish, and extended lowflow conditions coupled with higher 

pollutant levels would likely result in 

behavior changes within all life stages, 

but could be particularly detrimental to 

early life stages (e.g., eggs, larvae, and 

juveniles). 

Stable river bottoms also are required 

by the sturgeon. The presence of stable 

river bottoms has been associated with 

the recent and historical captures of 

sturgeon in the Alabama and Tombigbee 

Rivers. Hartfield and Garner (1998, p. 6) 

documented the presence of stable 

substrates located between dredge and 

disposal sites in the lower Alabama 

River. These included areas with stable 

sand and gravel river bottoms, and 

bedrock walls. The presence of mussel 

beds and a diverse and dense insect 

community provide an indication that 

channel bottoms are relatively stable 

(Hartfield and Garner 1998, p. 6). As 

mentioned above, the preferred diet of 

the sturgeon is aquatic invertebrates; 

therefore, the presence of mussel beds 

may be an important indicator of 

suitable sturgeon feeding habitat. 

Primary Constituent Elements (PCEs) for 

the Alabama Sturgeon 

Under the Act and its implementing 

regulations, we are required to identify 

the physical and biological features 

(PCEs laid out in the appropriate 

quantity and spatial arrangement) 

within the geographical area known to 

be occupied by the Alabama sturgeon at 

the time of listing that are essential to 

its conservation and which may require 

special management considerations or 

protections. Based on the above needs 

and our current knowledge of the life 

history, biology, and ecology of the 

species, we have determined that 

Alabama sturgeon’s PCEs are: 

1. A flow regime (i.e., the magnitude, 

frequency, duration, seasonality of 

discharge over time) necessary to 

maintain all life stages of the species in 

the riverine environment, including 

migration, breeding site selection, 

resting, larval development, and 

protection of cool water refuges (i.e., 

tributaries). 

2. River channel with stable sand and 

gravel river bottoms, and bedrock walls, 

including associated mussel beds. 

3. Limestone outcrops and cut 

limestone banks, large gravel or cobble 

such as that found around channel 

training devices, and bedrock channel 

walls that provide riverine spawning 

sites with substrates suitable for egg 

deposition and development. 

4. Long sections of free-flowing water 

to allow spawning migrations and 

development of embryos and larvae. 

5. Water temperature not exceeding 

32 °C (90 °F); dissolved oxygen levels 

not less than 5 mg/L (5 ppm), except 

under extreme conditions due to natural 

causes or downstream of existing 

hydroelectric impoundments, where it 

can range from 5 mg/L to 4 mg/L (5 ppm 

to 4 ppm); and pH (a measure of acidity) 

within the range of 6.0 to 8.5. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain the 

features essential to the conservation of 

the species that may require special 

management consideration or 

protections. It is recognized that 

numerous activities in and adjacent to 

the unit designated as critical habitat, as 

described in this final rule, may affect 

one or more of the PCEs found in that 

unit. These activities include, but are 

not limited to, those listed in the 

Application of the ‘‘Adverse 

Modification’’ Standard section as 

activities that may destroy or adversely 

modify critical habitat. We summarize 

here the primary threats to the physical 

and biological features essential to the 

conservation of the species. 

Water quality, as discussed in the 

Application of the ‘‘Adverse 

Modification’’ Standard section, can 

influence all life stages of the sturgeon. 

Water pollution and changes in water 

quality can originate from either nonpoint or point source discharges. Nonpoint source pollution is ubiquitous in 

the Mobile Basin and can originate from 

a variety of land use practices (such as 

livestock grazing, row crop farming, 

silviculture, and residential 

development). The impacts from nearly 

all non-point source pollutant sources 

can be managed by implementing the 

appropriate best management practices. 

This may include creation and 

maintenance of riparian buffers, and 

control of soil loss and runoff from 

adjacent lands. Point source pollution 

typically originates from industrial and 

municipal discharges, but may include 

any discharge that originates from a 

single point. Point source pollution can 

be managed by ensuring that NPDES 

permitted discharges are within 

compliance at all times. This requires 

proper water quality monitoring and 

record keeping, and ensuring that 

enough flow is present in the river to 

assimilate the volume of material that is 

being discharged. 

The Service should be consulted 

before actions that are Federally funded, 

authorized, or permitted are undertaken 

that may disturb areas upstream of areas 

known to support sturgeon, including 

perennial streams that may provide 

critical thermal refuges to the sturgeon 

at the interface with the main channel, 

especially during times when river 

flows are at abnormally low levels (e.g., 

during droughts). Therefore, prior to 

channel-disturbing activities, these 

areas should be identified and 

precautions should be taken to ensure 

that the integrity of these areas is 

maintained. Minimizing the effects of 

navigational dredging and 

channelization (past evidence of which 

can be seen throughout the historical 

range of the sturgeon) can be 

accomplished by avoiding the removal 

of consolidated bed material and rock 

walls, and consulting with the Service 

on proper disposal areas. 

Long sections of free-flowing habitat, 

as discussed in the fourth PCE, are 

necessary for spawning migrations and 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26501 

development of larvae. Although we do 

not have specific information on the 

exact length necessary for the Alabama 

sturgeon to successfully migrate and 

develop, the best estimate we can make, 

from information on the pallid and 

shovelnose sturgeon, is that it could be 

greater than 150 km (93 mi). We also 

recognize that although there are 524 

river kilometers (326 river miles) in the 

current designation, there may not be 

long enough stretches of free-flowing 

habitat to completely meet this 

requirement, but as we discussed under 

comment #10, this is the best remaining 

habitat we have left. We will continue 

to work with partners and seek every 

opportunity (e.g., fish passage) to 

address these issues and work towards 

increasing the length of free-flowing 

habitat that currently exists in the 

Alabama River. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available to designate 

critical habitat. We only designate areas 

outside the geographical area occupied 

by a species when a designation limited 

to its present range would be inadequate 

to ensure the conservation of the species 

(50 CFR 424.12(e)). The Alabama 

sturgeon is extremely rare. Despite 

extensive and intensive efforts in the 

decade prior to its listing, only eight 

Alabama sturgeon were captured, or 

reported captured and released. All 

river sturgeons are migratory and may 

migrate hundreds of kilometers to 

spawn, and newly hatched larvae may 

drift hundreds of kilometers before 

settling. Therefore, connectivity of 

spawning, juvenile, and adult feeding 

and developmental habitats is necessary 

for the conservation of the species. 

We began our analysis by evaluating 

the Alabama sturgeon in the context of 

its distribution throughout the historical 

range to determine what portion of the 

range must be included to ensure 

conservation of the species. We 

considered several factors in this 

evaluation: (1) Inclusion of reaches that 

provide the highest likelihood of 

embryo and juvenile development, (2) 

inclusion of reaches that contain 

suitable spawning habitat, and (3) 

inclusion of areas that provide 

protection of the species during low 

flow periods and other catastrophic 

events. 

The historical range of the Alabama 

sturgeon included nearly every major 

basin in the Mobile River basin 

downstream of the Fall Line, comprising 

nearly 1,600 km (994 mi) of riverine 

habitat in the Mobile River Basin in 

Alabama and Mississippi. There are 

records of Alabama sturgeon from 

nearly all the major rivers in the Mobile 

River Basin below the Fall Line, 

including the Black Warrior, 

Tombigbee, Alabama, Coosa, 

Tallapoosa, Mobile, Tensaw, and 

Cahaba Rivers (Burke and Ramsey 1985, 

p. 1). However, over the last century, the 

species has disappeared from at least 85 

percent of its historical range, and since 

the 1960s has experienced a significant 

decline in the remaining range. 

Recent collections (since 1990) of the 

Alabama sturgeon are confined to the 

lower Alabama River from its 

confluence with the Tombigbee River 

upstream to R.F. Henry Lock and Dam, 

including the lower Cahaba River (Rider 

and Hartfield 2007, p. 492). The entire 

historical range of the Alabama sturgeon 

is now controlled by a series of more 

than 25 large locks or dams. These 

manmade structures have resulted in a 

series of impoundments that are 

interspersed with free-flowing reaches 

of varying lengths. Within the Alabama 

sturgeon’s historical range there are 

three dams on the Alabama River 

(completed between 1969 and 1971), 

two on the Black Warrior River 

(completed by 1971), and six on the 

Tombigbee River (completed between 

1955 and 1985). These 11 dams alone 

have impounded and fragmented more 

than 970 km (602 mi) of riverine habitat 

once occupied by sturgeon. Prior to 

construction of these structures, 

sturgeon could move freely between 

feeding areas, from feeding areas to sites 

that were suitable for spawning and 

development of embryos, and larvae had 

abundant free-flowing riverine habitat to 

develop. 

The locks and dams that impound the 

river constitute barriers to sturgeon 

passage. Although fish species that 

occupy the middle of the water column 

(e.g., shad, catfishes, paddlefish) could, 

and do, pass through the locks while 

they are being operated, evidence 

suggests that sturgeon do not pass 

through the lock chambers during 

normal lockages. Most adult sturgeons, 

including the Alabama sturgeon, are 

benthic (bottom-dwelling) cruisers, and 

are not likely to move up in the water 

column to scale physical hurdles (Cooke 

et al. 2002, p. 108). The lock chambers 

at Millers Ferry and Claiborne Locks 

and Dams have upper and lower sills 

which form a rather large hurdle (about 

9 m (30 ft) above the river floor at the 

upper end of Miller Ferry) for sturgeon 

moving upstream and downstream. 

However, recent work with shortnose 

sturgeon could help develop promising 

new strategies for Alabama sturgeon fish 

passage. For instance, at the Pinopolis 

Project (at the base of Lake Moultrie on 

the Cooper River), cooperators have 

been attempting to move sturgeon 

upstream via the navigation locks. 

Although fish have not yet been shown 

to move directly through the locks, 

researchers have manually captured 

sturgeon below the dam and then 

moved them upstream of the lock, after 

which they migrated to areas 

approximately 161 km (100 mi) 

upstream where spawning had been 

documented (Finney et al. 2006). 

With migration routes impeded, 

isolated subpopulations of Alabama 

sturgeon are unable to successfully 

recruit adequate numbers to replenish 

the population. Reduced numbers of 

recruited sturgeon and surviving adult 

fish can become more vulnerable to 

localized declines in water and habitat 

quality caused by hydropower releases, 

local riverine and land management 

practices, or by polluted discharges. It is 

unlikely that Alabama sturgeon habitat 

and life cycle requirements can be met 

in long stretches of low flow, such as 

those that exist in the impounded areas 

of the river, where decreased flows 

typically cause silt and other fine 

sediments to accumulate over bottom 

habitats, creating unsuitable conditions 

for spawning, feeding, and larval growth 

and development. 

The Alabama sturgeon is considered 

extirpated from the upper Alabama, 

Black Warrior, Tombigbee, Coosa, 

Tallapoosa, Mobile, and Tensaw Rivers. 

The Upper Alabama is isolated by 

Robert F. Henry Lock and Dam, and this 

reach of the river is essentially 

impounded to the confluence of the 

Coosa and Tallapoosa Rivers, and does 

not contain appropriate habitat for the 

conservation of the Alabama sturgeon. 

Sturgeon have not been collected from 

the Black Warrior, Coosa, Tallapoosa, or 

Tombigbee Rivers in more than 30 

years. With the exception of the extreme 

lower Tombigbee River, all of these 

areas are isolated from currently 

occupied river reaches, and their 

riverine habitats are impounded and 

highly fragmented by multiple large 

river dams. Although some isolated 

areas within these drainages may 

contain some of the appropriate habitat 

features for Alabama sturgeon, their 

limited extent and the lack of continuity 

or accessibility to other habitats limits 

their value to the species. 

The Mobile, Tensaw, and lower 

Tombigbee Rivers are currently 

accessible to Alabama sturgeon; 

however, there have been no confirmed 

collections of the species in more than 

20 years. In addition, the natural 

hydrograph of the lower Mobile Basin 

has been radically altered by multiple 

26502 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

navigation and hydropower dams on the 

Tombigbee River, and the flows are 

seasonally highly variable. These areas 

may be occasionally used or visited by 

subadult or adult Alabama sturgeon; 

however, there is no recent evidence 

that this is occurring and little historical 

evidence of such use. Although some 

habitat features occur in these river 

reaches, their value in conservation of 

the species is not known. 

At the time of listing, we considered 

the Alabama River from south of 

Miller’s Ferry Lock and Dam to the 

confluence of the Tombigbee River to be 

occupied. Shortly after publication of 

the listing rule, an Alabama sturgeon 

was captured and released at river mile 

8.5 in the Cahaba River. This capture of 

an adult sturgeon indicated that this 

area also was occupied at the time of 

listing, given that the fish could not 

have reached this area from other 

sections of the river due to the lock and 

dam arrangement (see the Riverine 

Flows and Channel Stability section), 

and would have been present at the time 

the rule was published in the Federal 

Register (May 5, 2000). Given the fish’s 

proximity to the mouth of the Cahaba 

River and the lack of barriers with the 

Alabama River section located between 

R.F. Henry Lock and Dam and the 

Millers Ferry Lock and Dam, we believe 

the fish are likely to use all of these 

areas, and, therefore, we consider these 

areas occupied at the time of listing. 

There is some evidence of past upstream 

spawning runs in the Cahaba River as 

well (Williams and Clemmer 1991, p. 

27). Based on historical information and 

recent collections, we consider all of the 

following areas to have been occupied at 

listing, as well as currently occupied: 

The Alabama River from R.F. Henry 

Lock and Dam downstream to the 

confluence of the Tombigbee River, and 

the Cahaba River from its confluence 

with the Alabama River upstream to 

U.S. Highway 82, which is close to the 

Fall Line at Centreville, Alabama. Given 

the lack of appropriate habitat 

elsewhere within the species’ historical 

range, we conclude that this final 

designation should include all habitat 

occupied at the time of listing. 

Once we determined that the proper 

scale of the critical habitat designation 

should cover the area occupied by the 

species, we assessed the critical life 

history components of Alabama 

sturgeon as they relate to habitat. 

Alabama sturgeon use the rivers for 

spawning, larval and juvenile feeding 

and development, adult resting, feeding, 

and staging, and to move between the 

areas that support these components. 

Therefore, all areas meeting these 

requirements were considered for 

inclusion. 

We then investigated the habitat types 

that support these life history 

components and where these habitat 

areas are located. We evaluated 

empirical data (including that gathered 

from recent radiotelemetry), recent 

channel bathymetry data (collected by 

the USACE), as well as published and 

unpublished literature. These habitat 

components are described in the 

Primary Constituent Elements section of 

this final rule. 

To determine which areas should be 

designated as critical habitat, we then 

evaluated where the necessary physical 

and biological features of Alabama 

sturgeon habitat occur within the areas 

occupied at the time of listing. Detailed 

location data are included in the unit 

description in the Final Critical Habitat 

Designation section of this final rule. 

We have determined that these areas 

occur from the Alabama River, at its 

confluence with the Tombigbee River, 

upstream to R.F. Henry Lock and Dam. 

This also includes the Cahaba River 

upstream to U.S. Highway 82 near the 

Fall Line in Bibb County. All of these 

areas support one or more of the PCEs 

and are accessible to sturgeon (i.e., not 

entirely blocked by dams). All life stages 

are associated with flowing waters and 

other features characteristic of freeflowing riverine habitats. Nearly the 

entire length of the Alabama and Cahaba 

River currently meet these 

requirements. This area is being 

designated as critical habitat to ensure 

adequate protection of spawning sites, 

habitat needed for juvenile 

development, and movement of adult 

sturgeon to and from spawning areas. 

When determining critical habitat 

boundaries within this final rule, we 

made every effort to avoid including 

developed areas such as lands covered 

by buildings, pavement, and other 

structures, because such lands lack 

PCEs for the Alabama sturgeon. The 

scale of the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the maps of this final rule have been 

excluded by text in the rule and are not 

designated as critical habitat. Therefore, 

a Federal action involving these lands 

will not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the PCEs in the adjacent critical habitat. 

We are designating as critical habitat 

lands that we have determined to be 

occupied at the time of listing and 

contain, or have the potential to contain, 

sufficient PCEs to support life history 

functions essential for the conservation 

of the species. 

The Alabama and Cahaba Rivers 

Critical Habitat Unit was designated 

based on sufficient PCEs being present 

to support Alabama sturgeon life 

processes. Some segments of this unit 

contain all PCEs and supported multiple 

life processes. Some segments contained 

only a portion of the PCEs necessary to 

support the Alabama sturgeon’s 

particular use of that habitat. 

Final Critical Habitat Designation 

We are designating one contiguous 

section of the Alabama River and a 

portion of the lower Cahaba River as one 

critical habitat unit for Alabama 

sturgeon. The areas we describe below 

constitute our current best assessment at 

this time of areas that meet the 

definition of critical habitat for the 

Alabama sturgeon. The single unit we 

are designating as critical habitat is the 

Alabama River from its confluence with 

the Tombigbee River, Clarke and 

Baldwin Counties, Alabama, upstream 

to R.F. Henry Lock and Dam, Autauga 

and Lowndes Counties, Alabama; and 

the Cahaba River from its confluence 

with the Alabama River upstream to 

U.S. Highway 82 near the Fall Line in 

Bibb County, Alabama. Table 1 shows 

the occupied unit, land ownership, and 

approximate area. 

TABLE 1—ALABAMA STURGEON FINAL CRITICAL HABITAT UNIT: OCCUPANCY, SIZE, AND LAND OWNERSHIP

Critical habitat unit Occupied at time of 

listing Currently occupied 

Size of unit in 

kilometers 

(miles) 

Land ownership by type 

Alabama and Cahaba Rivers .............................. yes ................................ yes ................................ 524 (326) State. 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26503 

We present a brief description of the 

unit and reasons why it meets the 

definition of critical habitat for the 

Alabama sturgeon, below. 

Unit: Alabama and Cahaba Rivers, 

Alabama 

The critical habitat unit encompasses 

524 km (326 mi) of river channel. The 

portion of river channel in the Alabama 

River extends 394 km (245 mi) from its 

confluence with the Tombigbee River, 

Baldwin and Clarke Counties, Alabama, 

upstream to R.F. Henry Lock and Dam, 

Autauga and Lowndes Counties, 

Alabama; and the portion of river 

channel in the Cahaba River extends 

130 km (81 mi) from its confluence with 

the Alabama River, Dallas County, 

Alabama, upstream to U.S. Highway 82, 

Bibb County, Alabama. The Alabama 

and Cahaba Rivers are the last known 

areas that still support the sturgeon, and 

both were occupied at the time of 

listing. This was recently confirmed by 

the 2007 collection of an individual 

from the Alabama River below 

Claiborne Lock and Dam, and the 2000 

collection of an individual sturgeon 

from the lower Cahaba River (ADCNR 

pers. comm. 2007). Although the 

Alabama River, within this unit, 

contains two physical barriers 

(Claiborne and Millers Ferry Locks and 

Dams), it has several PCEs and has the 

potential to support all of the PCEs to 

sustain this extremely rare fish. The 

single critical habitat unit includes, for 

each river or stream listed, the channel 

between the ordinary high water mark 

on each bank, which is defined in 33 

CFR 329.11 as ‘‘the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as clear, natural line 

impressed on the bank; shelving; 

changes in the character of the soil; 

destruction of terrestrial vegetation; the 

presence of litter and debris; or other 

appropriate means that consider the 

characteristics of the surrounding 

areas.’’ The distances between 

landmarks marking the upstream and 

downstream boundaries of the unit are 

given in kilometers and equivalent 

miles, as measured by tracing the 

thalweg (a line connecting the lowest 

points of successive cross sections) of 

the stream, not the straight-line 

distance. River miles referenced in this 

rule were taken from a USACE 1985 

stream mileage table. 

The river channel within the entire 

unit is owned by the State of Alabama, 

and the vast majority of adjacent lands 

are under private ownership, with the 

exception of a portion of the Cahaba 

River that includes Talladega National 

Forest (Oakmulgee Division). Although 

the Oakmulgee Division encompasses a 

total of 63,484 hectares (ha) (156,871 

acres (ac)), there are only about 9,952 ha 

(24,591 ac) that are directly adjacent to 

the Cahaba River. The Barton Beach 

Reserve, a small tract owned by The 

Nature Conservancy, encompasses 45 ha 

(112 ac) and covers approximately 1,150 

m (3,773 ft) along the Cahaba River. 

This unit meets the definition of critical 

habitat based on the discussion above 

and contains all PCEs. This unit was 

occupied at the time of listing and is 

currently occupied. Special 

management of the PCEs for the 

Alabama sturgeon and its habitat may be 

required for the following threats: Lowflow conditions, detrimental changes in 

water quality, reduction in the amount 

of free-flowing habitat, and detrimental 

changes to the morphology or stability 

of the river channel. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the Fifth and 

Ninth Circuits Court of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’ 

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F.3d 1059 (9th Cir. 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 442 

(5th Cir. 2001)), and we do not rely on 

this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain those physical and biological 

features that relate to the ability of the 

area to periodically support the species) 

to serve its intended conservation role 

for the species. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect 

Alabama sturgeon or its designated 

critical habitat require section 7 

consultation under the Act. Activities 

on State, Tribal, local, or private lands 

requiring a Federal permit (such as a 

permit from the USACE under section 

404 of the Clean Water Act (33 U.S.C. 

1251 et seq.) or a permit from us under 

26504 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

section 10 of the Act) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

subject to the section 7 consultation 

process. Federal actions not affecting 

listed species or critical habitat, and 

actions on State, Tribal, local, or private 

lands that are not Federally funded, 

authorized, or permitted, do not require 

section 7 consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or retain those PCEs that relate 

to the ability of the area to periodically 

support the species. Activities that may 

destroy or adversely modify critical 

habitat are those that alter the PCEs to 

an extent that appreciably reduces the 

conservation value of critical habitat for 

Alabama sturgeon. As discussed above, 

the role of critical habitat is to support 

the life history needs of the species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the Alabama sturgeon include, but 

are not limited to: 

(1) Actions that would significantly 

alter the existing flow regime to the 

point at which the habitat could no 

longer sustain normal behavior and 

promote species recovery. Such 

activities could include, but are not 

limited to, construction and operation of 

dams, water withdrawals, and 

channelization. These activities could 

eliminate or reduce spawning habitats, 

impair the development of embryos and 

larvae, impede or eliminate normal 

migration patterns, reduce the ability of 

the river to adequately assimilate 

pollution, and compromise the integrity 

and utility of cool water refuges 

(perennial tributaries). In addition, 

flows less than 4,640 cubic feet per 

second, as determined by the USACE at 

Montgomery, would need to be 

evaluated on an individual basis to 

determine if they may affect the critical 

habitat, and conclusions could be 

dependent, in part, on intervening flows 

(e.g., Catoma Creek, Cahaba River), 

water temperature, and dissolved 

oxygen content in the Alabama River 

downstream of Montgomery. Dependent 

on these factors and conditions in the 

river at the time of the consultation, a 

Not Likely to Adversely Affect 

Determination could still be possible. 

(2) Actions that would significantly 

alter the morphology and stability of the 

river channel. Such activities would 

include, but are not limited to, dredging 

and mining of consolidated bed 

material, impoundments, road and 

bridge construction, and destruction of 

riparian vegetation. These activities 

could eliminate suitable substrates for 

egg deposition and development, 

increase turbidity, and initiate erosion 

along the banks, which could increase 

water temperatures and reduce the 

width of the riparian zone. 

(3) Actions that would significantly 

decrease the amount of currently 

available free-flowing habitat. Such 

activities would include, but are not 

limited to, construction and operation of 

dams, water withdrawals, further 

alteration of flow regimes, and 

diversions. These activities could 

further minimize the currently available 

length of free-flowing habitat to support 

spawning migrations and development 

of embryos and larvae. 

(4) Actions that would significantly 

alter water chemistry beyond what is 

required in the State of Alabama water 

quality standards. Such activities would 

include, but are not limited to, the 

discharge of chemicals, biological 

pollutants, nutrients, and other toxic 

substances that originate from non-point 

or point source discharges, and altered 

flow patterns that could lower dissolved 

oxygen levels. These substances could 

directly, or through accumulation in 

tissue, impair sturgeon behavior, 

reproduction, and growth. 

We consider the unit designated as 

critical habitat to contain features 

essential to the conservation of Alabama 

sturgeon and which require special 

management. The unit is within the 

geographic range of the species, it was 

occupied by the species at the time of 

listing, and it is currently occupied. 

Federal agencies already consult with us 

on activities that may affect the species, 

to ensure that their actions do not 

jeopardize the continued existence of 

Alabama sturgeon. 

Exemptions and Exclusions 

Application of Section 4(a)(3) of the Act 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 670a of this title, if the 

Secretary determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation.’’ 

There are no Department of Defense 

lands with a completed integrated 

natural resources management plan 

within the designated critical habitat 

designation. 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the statute on its face, as well as the 

legislative history, are clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. 

Under section 4(b)(2) of the Act, we 

may exclude an area from designated 

critical habitat based on economic 

impacts, impacts on national security, 

or any other relevant impacts. In 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If based on this 

analysis, we make this determination, 

then we can exclude the area only if 

such exclusion would not result in the 

extinction of the species. 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26505 

Exclusions Based on Economic Impacts 

Under section 4(b)(2) of the Act, we 

consider the economic impacts of 

specifying any particular area as critical 

habitat. In order to consider economic 

impacts, we prepared a draft economic 

analysis, which we made available for 

public review on December 30, 2008 (73 

FR 79770), based on the May 27, 2008, 

proposed rule (73 FR 30361). We 

accepted comments on the draft analysis 

until February 9, 2009. Following the 

close of the comment period, a final 

analysis of the potential economic 

effects of the designation was developed 

taking into consideration the public 

comments and any new information. 

The intent of the FEA is to quantify 

the economic impacts of all potential 

conservation efforts for Alabama 

sturgeon. The economic impact of the 

final critical habitat designation is 

analyzed by comparing scenarios both 

‘‘with critical habitat’’ and ‘‘without 

critical habitat.’’ The ‘‘without critical 

habitat’’ scenario represents the baseline 

for the analysis, considering protections 

already in place for the species (e.g., 

under the Federal listing and other 

Federal, State, and local regulations). 

The baseline, therefore, represents the 

costs incurred regardless of whether 

critical habitat is designated. The ‘‘with 

critical habitat’’ scenario describes the 

incremental impacts associated 

specifically with the designation of 

critical habitat for the species. The 

incremental conservation efforts and 

associated impacts are those not 

expected to occur absent the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat above and 

beyond the baseline costs; these are the 

costs we consider in the final 

designation of critical habitat. The 

analysis looks retrospectively at 

baseline impacts incurred since the 

species was listed, and forecasts both 

baseline and incremental impacts likely 

to occur with the designation of critical 

habitat. 

The FEA also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The FEA measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the 

designation might unduly burden a 

particular group or economic sector. 

Finally, the FEA looks retrospectively at 

costs that have been incurred since 2000 

(year of the species’ listing; 65 FR 

26438), and considers those costs that 

may occur in the 20 years following the 

designation of critical habitat, which 

was determined to be the appropriate 

period for analysis because limited 

planning information was available for 

most activities to forecast activity levels 

for projects beyond a 20-year timeframe. 

The FEA quantifies economic impacts of 

Alabama sturgeon conservation efforts 

associated with the following categories 

of activity: water management, activities 

that impact water quality, dredging 

activities and other impacts (e.g., bridge 

replacement, management plans, natural 

gas pipelines, etc.). 

Present value baseline impacts 

associated with potential future 

conservation efforts for the sturgeon are 

estimated to be $636,000 ($42,700 

annualized), assuming a 3 percent 

discount rate, or $466,000 ($44,000 

annualized), assuming a 7 percent 

discount rate, over the next 20 years. 

Baseline impacts quantified in this 

analysis are 40 percent project 

modifications for dredging activities. All 

remaining baseline impacts are 

administrative costs of section 7 

consultation. Impacts to dredging 

activities represent roughly 58.9 percent 

of forecast post-designation baseline 

costs. Impacts associated with water 

management represent 17.1 percent of 

the total, and impacts to activities that 

may affect water quality represent 15.1 

percent of the total. Present value 

incremental impacts are anticipated to 

result entirely from the added 

administrative requirements of forecast 

section 7 consultations, and are 

estimated to be $93,800 ($6,300 

annualized), assuming a 3 percent 

discount rate, or $71,200 ($6,720 

annualized), assuming a 7 percent 

discount rate. 

Our economic analysis did not 

identify any disproportionate costs that 

are likely to result from the designation. 

Following a consideration of the 

potential conservation benefits to the 

species from the designation of critical 

habitat and the potential economic 

impact, we have determined that there 

is a great conservation benefit to 

maintaining all areas within the 

designation. Consequently, we are not 

excluding any areas from this 

designation of critical habitat for the 

Alabama sturgeon based on economic 

impacts. 

A copy of the final economic analysis 

with supporting documents may be 

obtained by contacting the Alabama 

Ecological Services Field Office (see 

ADDRESSES) or by downloading from the 

Internet at http://www.regulations.gov. 

Exclusions Based on National Security 

Impacts 

Under section 4(b)(2) of the Act, we 

consider whether there are lands owned 

or managed by the Department of 

Defense (DOD) where a national security 

impact might exist. In preparing this 

final rule, we have determined that the 

lands within the designation of critical 

habitat for Alabama sturgeon are not 

owned or managed by the DOD; 

therefore, we anticipate no impact to 

national security. There are no areas 

excluded from this final designation 

based on impacts on national security. 

Exclusions Based on Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security. We 

consider a number of factors, including 

whether the landowners have developed 

any HCPs or other management plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation of, or 

exclusion from, critical habitat. In 

addition, we look at any Tribal issues, 

and consider the government-togovernment relationship of the United 

States with Tribal entities. We also 

consider any social impacts that might 

occur because of the designation. 

In preparing this final rule, we have 

determined that there are currently no 

HCPs or other management plans for 

Alabama sturgeon, and the final 

designation does not include any Tribal 

lands or trust resources. We anticipate 

no impact to Tribal lands, partnerships, 

or HCPs from this critical habitat 

designation. There are no areas 

excluded from this final designation 

based on other relevant impacts. 

Required Determinations 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant and has not reviewed 

this rule under Executive Order 12866 

(E.O. 12866). OMB bases its 

determination upon the following four 

criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

26506 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996 (5 U.S.C. 801 et seq.), whenever an 

agency must publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effects of the rule on small entities 

(small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The SBREFA amended RFA to require 

Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

In this final rule, we are certifying that 

the critical habitat designation for 

Alabama sturgeon will not have a 

significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., water management, water quality, 

dredging, and other activities). We 

apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’ 

or ‘‘significant economic impact.’’ 

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities authorized, funded, or 

carried out by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

authorize, fund, or carry out that may 

affect the Alabama sturgeon. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities (see Application of the 

‘‘Adverse Modification Standard’’ 

section). 

In our final economic analysis of the 

critical habitat designation, we 

evaluated the potential economic effects 

on small business entities resulting from 

conservation actions related to the 

listing of the Alabama sturgeon and the 

designation of critical habitat. The 

analysis is based on the estimated 

impacts associated with the rulemaking 

as described in Chapters 3 through 6 

and Appendix A of the analysis and 

evaluates the potential for economic 

impacts related to: (1) Water 

management, (2) water quality, (3) 

dredging, and (4) other activities. 

All incremental impacts quantified in 

the economic analysis are 

administrative impacts of conducting 

the forecasted section 7 consultations. 

That is, the designation of critical 

habitat is not forecasted to result in 

changes in operations and management 

of the water-dependent land use 

activities considered in this analysis as 

discussed in Sections 3 through 6. Small 

entities may, however, be required to 

spend additional time considering 

critical habitat during section 7 

consultation. These incremental, 

administrative impacts are the focus of 

this analysis of impacts to small entities. 

For development, construction, and 

dredging activities, the threshold is 

expressed in terms of annual revenues. 

While this threshold marks the high-end 

revenue estimate for the potentially 

affected small businesses, impacts per 

entity as described in the exhibit are 

significantly less than the threshold 

estimates. Conservatively assuming a 

single business is associated with all of 

the forecasted impacts for each activity, 

the greatest impact per entity would be 

incurred by a business that affects water 

quality. Note that the present-value, 20- 

year impact of $5,570 to a single small 

business is less than 0.01 percent of the 

small business annual revenue 

thresholds in this case. 

In addition to the incremental impacts 

summarized in Exhibit A–1 of the FEA, 

Sections 3 and 4 of the analysis discuss 

potential impacts that may result from 

providing greater river flow or 

complying with water quality standards 

to benefit the sturgeon. 

While this analysis acknowledges that 

such changes may generate economic 

impacts, we indicated in an October 22, 

2008, memorandum (provided as 

Appendix D in the FEA) that we cannot 

reliably predict whether, when, or the 

reasons, we may request these 

conservation efforts. In the case that the 

designation of critical habitat triggers 

the request for these conservation 

efforts, associated economic impacts 

would be considered incremental and 

therefore relevant to this discussion of 

impacts on small entities. In the case 

that we request higher river flows or 

accelerated compliance with existing 

water standards, small businesses may 

be affected. The nature of these 

potential impacts is presented in 

Sections 3 and 4 of the FEA. 

In summary, we considered whether 

this designation would result in a 

significant economic effect on a 

substantial number of small entities. 

Based on the above reasoning and 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26507 

currently available information, we 

concluded that this rule would not 

result in a significant economic impact 

on a substantial number of small 

entities. Therefore, we are certifying that 

the designation of critical habitat for 

Alabama sturgeon will not have a 

significant economic impact on a 

substantial number of small entities, 

and a regulatory flexibility analysis is 

not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 (E.O. 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’) on regulations 

that significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. OMB has provided 

guidance for implementing this 

Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared to not taking the regulatory 

action under consideration. There are 

currently two hydroelectric dams 

(Robert F. Henry and Millers Ferry 

Locks and Dams) located on portions of 

the river within the critical habitat 

designation. Although insufficient 

information is available to estimate 

changes in the electricity production of 

these facilities due to sturgeon 

conservation efforts, it is unlikely that 

any such changes would result in 

decreased electricity production of one 

billion kilowatt-hours in even the worst 

drought year (when additional flows for 

sturgeon conservation efforts would be 

most needed). During the drought year 

of 2007, total electricity generation from 

the 15 hydroelectric facilities in the 

ACT Basin was roughly 2.19 billion 

kilowatt-hours. To reach the 1 billion 

kilowatt-hour reduction specified in 

Executive Order No. 13211, 2007 

generation would need to be reduced by 

46 percent. Although changes in the 

timing and magnitude of flows 

throughout a given year for sturgeon 

conservation efforts may impact total 

electricity generation, total flow volume 

over the course of that year will remain 

unchanged. Any recommendations from 

us are therefore unlikely to cause 

reductions in generation of this 

magnitude. As such, designation of 

critical habitat is not expected to lead to 

any of the adverse outcomes specified in 

Executive Order No. 13211. As such, the 

designation of critical habitat is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(1) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or [T]ribal 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

will significantly or uniquely affect 

small governments, because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. By definition, Federal 

agencies are not considered small 

entities, although the activities they 

fund or permit may be proposed or 

carried out by small entities. As such, a 

Small Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating critical habitat for Alabama 

sturgeon in a takings implications 

assessment. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this 

designation of critical habitat for 

Alabama sturgeon does not pose 

significant takings implications for 

lands within or affected by the 

designation. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this rule does not have 

significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

Alabama. We received comments from 

the State of Georgia, the Alabama Office 

of Water Resources, the Governor’s 

Office for the State of Alabama, and the 

26508 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

Alabama Department of Conservation 

and Natural Resources, and we have 

addressed them in the Summary of 

Comments and Recommendations 

section of the rule. The designation of 

critical habitat in areas currently 

occupied by the Alabama sturgeon may 

impose nominal additional regulatory 

restrictions to those currently in place 

and, therefore, may have little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments, in that the areas that 

contain the physical and biological 

features essential to the conservation of 

the species are more clearly defined, 

and the PCEs of the habitat necessary to 

the conservation of the species are 

specifically identified. This information 

does not alter where and what Federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the regulation meets the 

applicable standards set forth in 

sections 3(a) and 3(b)(2) of the Order. 

We are designating critical habitat in 

accordance with the provisions of the 

Act. This final rule uses standard 

property descriptions and identifies the 

physical and biological features 

essential to the conservation of the 

subspecies within the designated areas 

to assist the public in understanding the 

habitat needs of the Alabama sturgeon. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). This rule will not impose 

recordkeeping or reporting requirements 

on State or local governments, 

individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by NEPA (42 U.S.C. 4321 et 

seq.) in connection with designating 

critical habitat under the Act. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This position was upheld by the 

U.S. Court of Appeals for the Ninth 

Circuit (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. 1995), cert. denied 

516 U.S. 1042 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), E.O. 

13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997, ‘‘American Indian 

Tribal Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act,’’ we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We determined that there are no Tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation, and no unoccupied Tribal 

lands that are essential for the 

conservation of the Alabama sturgeon. 

Therefore, we are not designating 

critical habitat for the Alabama sturgeon 

on Tribal lands. 

References Cited 

A complete list of all references cited 

is available on the Internet at http:// 

www.regulations.gov and upon request 

from the Alabama Ecological Services 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Author(s) 

The primary authors of this package 

are the staff of the Alabama Ecological 

Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

1531–1544; 16 U.S.C. 4201–4245; Public Law 

99–625, 100 Stat. 3500; unless otherwise 

noted. 

■ 2. In § 17.11(h), revise the entry for 

‘‘Sturgeon, Alabama’’ under ‘‘FISHES’’ 

in the List of Endangered and 

Threatened Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate 

population 

where endangered or 

threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

FISHES

* * * * * * * 

Sturgeon, Alabama Scaphirhynchus 

suttkusi 

U.S.A. (AL, MS) NA E 697 17.95(e) NA 

* * * * * * * 

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 26509 

■ 3. In § 17.95, amend paragraph (e) by 

adding an entry for ‘‘Alabama sturgeon 

(Scaphirhynchus suttkusi),’’ in the same 

alphabetical order that the species 

appears in the table at § 17.11(h), to read 

as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(e) Fishes 

* * * * * 

Alabama sturgeon (Scaphirhynchus 

suttkusi) 

(1) Critical habitat unit is depicted for 

Baldwin, Monroe, Wilcox, Clarke, 

Dallas, Lowndes, Autauga, Bibb, and 

Perry Counties, Alabama, on the map 

below. 

(2) The primary constituent elements 

of critical habitat for the Alabama 

sturgeon are: 

(i) A flow regime (i.e., the magnitude, 

frequency, duration, seasonality of 

discharge over time) necessary to 

maintain all life stages of the species in 

the riverine environment, including 

migration, breeding site selection, 

resting, larval development, and 

protection of cool water refuges (i.e., 

tributaries). 

(ii) River channel with stable sand 

and gravel river bottoms, and bedrock 

walls, including associated mussel beds. 

(iii) Limestone outcrops and cut 

limestone banks, large gravel or cobble 

such as that found around channel 

training devices, and bedrock channel 

walls that provide riverine spawning 

sites with substrates suitable for embryo 

deposition and development. 

(iv) Long sections of free-flowing 

water to allow spawning migrations and 

development of embryos and larvae. 

(v) Water temperature not exceeding 

32° Celsius (90° Fahrenheit); dissolved 

oxygen levels not less than 5 milligrams 

per liter (mg/L) (5 parts per million 

(ppm)), except under extreme 

conditions due to natural causes or 

downstream of existing hydroelectric 

impoundments, where it can range from 

5 mg/L to 4 mg/L (5 ppm to 4 ppm); and 

pH within the range of 6.0 to 8.5. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, docks, dams, runways, 

roads, and other paved areas) and the 

land or waterway on which they are 

located existing within the legal 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map unit. Data 

layers defining the map unit were 

created on a base of USGS 7.5′ 

quadrangles, and the critical habitat unit 

was then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Unit: Alabama and Cahaba Rivers; 

Baldwin, Monroe, Wilcox, Clarke, 

Dallas, Lowndes, Autauga, Perry, and 

Bibb Counties, Alabama. 

(i) The unit encompasses 524 km (326 

mi) of river channel. The portion of 

river channel in the Alabama River 

extends 394 km (245 mi) from its 

confluence with the Tombigbee River, 

Baldwin and Clarke Counties, Alabama, 

upstream to R.F. Henry Lock and Dam, 

Autauga and Lowndes Counties, 

Alabama; and the portion of river 

channel in the Cahaba River extends 

130 km (81 mi) from its confluence with 

the Alabama River, Dallas County, 

Alabama, upstream to U.S. Highway 82, 

Bibb County, Alabama. 

(ii) Note: Map of Unit, Critical Habitat 

for Alabama Sturgeon (Scaphirhynchus 

suttkusi): Alabama and Cahaba Rivers, 

follows: 

BILLING CODE 4310–55–P 

26510 Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules and Regulations 

* * * * * Dated: May 21, 2009. 

Jane Lyder, 

Deputy Assistant Secretary, Fish and Wildlife 

and Parks. 

[FR Doc. E9–12517 Filed 6–1–09; 8:45 am] 

BILLING CODE 4310–55–C 


ER02JN09.011</GPH>