[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Rules and Regulations]
[Pages 5913-5982]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1950]



[[Page 5913]]

Vol. 77

Monday,

No. 24

February 6, 2012

Part III





Department of Commerce





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 National Oceanic and Atmospheric Administration





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50 CFR Part 224





Endangered and Threatened Wildlife and Plants; Final Listing 
Determinations for Two Distinct Population Segments of Atlantic 
Sturgeon (Acipenser oxyrinchus oxyrinchus) in the Southeast; Final Rule

Federal Register / Vol. 77, No. 24 / Monday, February 6, 2012 / Rules 
and Regulations

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 224

[Docket No. 090219208-1762-02]
RIN 0648-XN50


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

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

ACTION: Final rule.

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SUMMARY: We, NMFS, issue a final determination to list the Carolina and 
South Atlantic distinct population segments (DPSs) of Atlantic sturgeon 
(Acipenser oxyrinchus oxyrinchus) as endangered under the Endangered 
Species Act (ESA) of 1973, as amended. We have reviewed the status of 
the species and conservation efforts being made to protect the species, 
considered public and peer review comments, and we have made our 
determination that the Carolina and South Atlantic DPSs are in danger 
of extinction throughout their ranges, and should be listed as 
endangered, based on the best available scientific and commercial data.

DATES: This final rule is effective April 6, 2012.

ADDRESSES: Assistant Regional Administrator for Protected Resources, 
NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, 
FL 33701-5505.

FOR FURTHER INFORMATION CONTACT: Kelly Shotts, NMFS, Southeast Regional 
Office (727) 824-5312 or Lisa Manning, NMFS, Office of Protected 
Resources (301) 427-8466.

SUPPLEMENTARY INFORMATION:

Background

    We first identified Atlantic sturgeon as a candidate species in 
1991. On June 2, 1997, NMFS and U.S. Fish and Wildlife Service (USFWS; 
collectively, the Services) received a petition from the Biodiversity 
Legal Foundation requesting that we list Atlantic sturgeon in the 
United States, where it continues to exist, as threatened or endangered 
and designate critical habitat within a reasonable period of time 
following the listing. A notice was published in the Federal Register 
on October 17, 1997, stating that the Services had determined 
substantial information existed indicating the petitioned action may be 
warranted (62 FR 54018). In 1998, after completing a comprehensive 
status review, the Services published a 12-month determination in the 
Federal Register announcing that listing was not warranted at that time 
(63 FR 50187; September 21, 1998). We retained Atlantic sturgeon on the 
candidate species list (and subsequently transferred it to the Species 
of Concern List (69 FR 19975; April 15, 2004)). Concurrently, the 
Atlantic States Marine Fisheries Commission (ASMFC) completed Amendment 
1 to the 1990 Atlantic Sturgeon Fishery Management Plan (FMP) that 
imposed a 20- to 40-year moratorium on all Atlantic sturgeon fisheries 
until the Atlantic Coast spawning stocks could be restored to a level 
where 20 subsequent year classes of adult females were protected 
(ASMFC, 1998). In 1999, pursuant to section 804(b) of the Atlantic 
Coastal Fisheries Cooperative Management Act (ACFCMA) (16 U.S.C. 5101 
et seq.), we followed this action by closing the Exclusive Economic 
Zone (EEZ) to Atlantic sturgeon retention. In 2003, we sponsored a 
workshop in Raleigh, North Carolina, with USFWS and ASMFC entitled, 
``The Status and Management of Atlantic Sturgeon,'' to discuss the 
status of sturgeon along the Atlantic Coast and determine what 
obstacles, if any, were impeding their recovery. The workshop revealed 
mixed results in regards to the status of Atlantic sturgeon riverine 
populations, despite the coastwide fishing moratorium. Some populations 
seemed to be recovering while others were declining. Bycatch and 
habitat degradation were noted as possible causes for continued 
population declines.
    Based on the information gathered from the 2003 workshop on 
Atlantic sturgeon, we decided that a new review of Atlantic sturgeon 
status was needed to determine if listing as threatened or endangered 
under the ESA was warranted. The Atlantic sturgeon status review team 
(ASSRT), consisting of four NMFS, four USFWS, and three U.S. Geological 
Survey (USGS) biologists prepared a draft status review report. The 
draft report was then reviewed and supplemented by eight state and 
regional experts who provided their individual expert opinions on the 
scientific facts contained in the report and provided additional 
information to ensure the report provided the best available data. 
Lastly, the report was peer reviewed by six experts from academia. A 
Notice of Availability of the final status review report was published 
in the Federal Register on April 3, 2007 (72 FR 15865). On October 6, 
2009, we received a petition from the Natural Resources Defense Council 
to list Atlantic sturgeon as endangered under the ESA. As an 
alternative, the petitioner requested that the species be delineated 
and listed as the five DPSs described in the 2007 Atlantic sturgeon 
status review report (ASSRT, 2007): Gulf of Maine, New York Bight, 
Chesapeake Bay, Carolina, and South Atlantic DPSs, with the Gulf of 
Maine and South Atlantic DPSs listed as threatened, and the remaining 
three DPSs listed as endangered. The petitioner also requested that 
critical habitat be designated for Atlantic sturgeon under the ESA. We 
published a Notice of 90-Day Finding on January 6, 2010 (75 FR 838), 
stating that the petition presented substantial scientific or 
commercial information indicating that the petitioned actions may be 
warranted. On October 6, 2010, we published a proposed rule (75 FR 
61904) to list the Carolina and South Atlantic DPSs, the two DPSs that 
spawn in the NMFS Southeast Region, as endangered. We originally 
solicited written public comments via email, fax, and letter on the 
proposed listing rule for 90 days and extended it for an additional 30 
days by public request. We also accepted written and verbal comments at 
two public hearings in Wilmington, North Carolina, and Atlanta, 
Georgia, in December 2010. A separate proposed rule (75 FR 91872) was 
published on October 6, 2010, for the three DPSs of Atlantic sturgeon 
that spawn in the NMFS Northeast Region.

Listing Determinations Under the Endangered Species Act

    We are responsible for determining whether Atlantic sturgeon are 
threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To be 
considered for listing under the ESA, a group of organisms must 
constitute a ``species,'' which is defined in section 3 of the ESA to 
include ``any subspecies of fish or wildlife or plants, and any 
distinct population segment of any species of vertebrate fish or 
wildlife which interbreeds when mature.'' On February 7, 1996, the 
Services adopted a policy describing what constitutes a DPS of a 
taxonomic species (61 FR 4722). The joint DPS policy identified two 
elements that must be considered when identifying a DPS: (1) The 
discreteness of the population segment in relation to the remainder of 
the species (or subspecies) to which it belongs; and (2) the 
significance of the population segment to the remainder of the species 
(or subspecies) to which it

[[Page 5915]]

belongs. As stated in the joint DPS policy, Congress expressed its 
expectation that the Services would exercise authority with regard to 
DPSs sparingly and only when the biological evidence indicates such 
action is warranted.
    Section 3 of the ESA defines an endangered species as ``any species 
which is in danger of extinction throughout all or a significant 
portion of its range'' and a threatened species as one ``which is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range.'' The statute 
requires us to determine whether any species is endangered or 
threatened as a result of any one or a combination of the following 
five factors: (A) The present or threatened destruction, modification, 
or curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence (section 4(a)(1)(A)(E)). Section 4(b)(1)(A) of the 
ESA requires us to make listing determinations based solely on the best 
scientific and commercial data available after conducting a review of 
the status of the species and after taking into account efforts being 
made to protect the species. Accordingly, we have followed a stepwise 
approach in making our listing determination for Atlantic sturgeon. 
Considering biological evidence, such as the separation between river 
populations during spawning and the possibility of multiple distinct 
interbreeding Atlantic sturgeon populations, we evaluated whether 
Atlantic sturgeon population segments met the DPS Policy criteria. We 
then determined the status of each DPS (each ``species'') and 
identified the factors and threats contributing to their status per 
section 4(a)(1) of the ESA. Finally, we assessed efforts being made to 
protect the species, determining if these efforts are adequate to 
mitigate impacts and threats to the species' statuses. We evaluated 
ongoing conservation efforts using the criteria outlined in the Policy 
for Evaluating Conservation Efforts (PECE; 68 FR 15100; March 28, 2003) 
to determine their certainties of implementation and effectiveness.
    Finally, section 4(b)(1)(B) of the ESA requires us to give 
consideration to species which: (1) Have been designated as requiring 
protection from unrestricted commerce by any foreign nation or pursuant 
to an international agreement; or (2) have been identified as in danger 
of extinction, or likely to become so within the foreseeable future, by 
any state agency or by any agency of a foreign nation.

Peer Review and Public Comments

    In December 2004, the Office of Management and Budget (OMB) issued 
a Final Information Quality Bulletin for Peer Review establishing 
minimum standards for peer review. Similarly, a joint NMFS/FWS policy 
(59 FR 34270; July 1, 1994) requires us to solicit independent expert 
review from at least three qualified specialists. We solicited peer 
review comments on the proposed listing rule from three peer reviewers, 
two from academia and one from a Federal resource agency, with 
expertise on Atlantic sturgeon. Written public comments were received 
from 59 commenters and 7 commenters provided verbal comments at the 
public hearings. Peer review comments are treated in the next section. 
In the following sections of the document, the public comments are 
categorized in the following areas: (1) The delineation of DPSs; (2) 
abundance and trends; (3) differences between the proposed rule and the 
conclusions in the 2007 and 1998 status reviews; (4) the need to list 
Atlantic sturgeon under the ESA and consequences of listing; (5) the 
analysis of threats (habitat modification and destruction, 
overutilization, disease and predation, the inadequacy of regulatory 
mechanisms, other natural and manmade factors); (6) recovery; (7) 
critical habitat; and (8) adequacy of the public hearing. Many comments 
were complex and had multiple inferences, and thus individual 
statements are addressed in multiple comments and responses below. 
Information and data provided by commenters supported or did not 
conflict with our findings for the Carolina and South Atlantic DPSs. 
Some information submitted by commenters as ``new'' information was 
information already included and evaluated in our proposed listing rule 
determination. Some commenters asked us to consider information, such 
as increased compliance responsibilities and economic costs on agencies 
and the public, that the ESA and its implementing regulations prohibit 
us from considering in making listing determinations. Many commenters 
stated that NMFS should postpone a listing determination until the 
results of recent research are available, further research can be 
undertaken, state and Federal moratoria on the harvest and possession 
of Atlantic sturgeon have been in effect for the full planned duration, 
and/or until non-listing alternatives (e.g., entering into multi-agency 
partnerships and expanding existing programs) have been explored. 
Because we were petitioned to list the Atlantic sturgeon, we cannot 
delay an assessment of the status of Atlantic sturgeon. We were 
required to evaluate the status of the species and the threats it is 
currently facing and make a finding on whether the petitioned action 
was warranted within 12 months, which resulted in our proposed listing 
determination of endangered for the Carolina and South Atlantic DPSs of 
Atlantic sturgeon. We believe the current body of information on the 
declines of Atlantic sturgeon, the failure of their population numbers 
to rebound despite harvest prohibitions, and the ongoing impacts from 
bycatch, habitat modification, and the inadequacy of existing 
regulatory mechanisms or protective efforts to control or mitigate for 
these impacts, warrant listing the Carolina and South Atlantic DPSs as 
endangered. The information provided in the peer review and public 
comments did not provide a basis for revising our evaluation of the 
status of Atlantic sturgeon, the nature and significance of the threats 
and impacts they face, or our listing determinations. In the following 
sections of the document, we summarize the comments pertaining to the 
proposed listing rule for the Carolina and South Atlantic DPSs and 
provide our responses to those comments. Complete copies of the peer 
review comments, the written public comments, and transcripts of the 
public hearings are available on the Internet at www.regulations.gov.

Peer Review Comments

    In this section, we refer to peer reviewers 1, 2, and 3, which 
correspond to the way the peer reviewers are identified on http://www.regulations.gov.
    Comment 1 (definitions of endangered and threatened): Two of the 
three peer reviewers disagreed, all or in part, with our proposed 
listing of the Carolina and South Atlantic DPSs as endangered. Each 
peer reviewer provided their own definitions of endangered and 
threatened.
    Peer reviewer 1 believed that a DPS warranted an endangered listing 
only if no single historical spawning river within the DPS sustained an 
abundant and regularly reproducing Atlantic sturgeon population. Peer 
reviewer 1 stated that no substantive biological justification or new 
evidence is presented in the proposed listing of the Carolina and South 
Atlantic DPSs as endangered to change the conclusions presented in the 
2007 status review, which concluded that the Carolina DPS should be 
listed as threatened and made

[[Page 5916]]

no conclusion with regard to the South Atlantic DPS due to lack of 
information to allow a full assessment of subpopulations within the 
DPS. Peer reviewer 1 stated that an endangered listing would be 
appropriate if no single historical spawning river within that DPS 
appeared to sustain both a relatively abundant and simultaneously 
regularly-reproducing Atlantic sturgeon population.
    Based on the available information on abundance, reproduction, and 
the presence of early life history stages, the reviewer stated that the 
Carolina DPS comes closest to conforming to the standard of an 
endangered species. The reviewer cited data from the proposed listing 
rule that two of the original three major spawning populations (the 
Roanoke and Santee-Cooper populations) in the Carolina DPS appear to 
remain functional, and not particularly vulnerable to extinction. The 
reviewer also stated the proposed listing of the South Atlantic DPS did 
not appear to be supported by the best available scientific 
information, since there is evidence of at least one viable, 
reproducing, and increasing Atlantic sturgeon population in the South 
Atlantic DPS, the Altamaha River population (Schueller and Peterson, 
2006, 2010). The reviewer further cited both the Savannah River and the 
ACE (Ashepoo, Combahee, and Edisto Rivers) Basin systems as appearing 
to support reproducing Atlantic sturgeon populations, and stated 
Atlantic sturgeon appear to be abundant in the ACE system. The reviewer 
questioned whether the remaining South Atlantic DPS river populations 
in the smaller and less well-studied Ogeechee and Satilla rivers 
together constitute a significant portion of the species' range over 
which extinction is probable in order to justify an ``endangered'' 
designation for the entire DPS. The reviewer noted that the 2007 status 
review report deferred from such a designation and that it appears the 
South Atlantic DPS does not closely conform to the standard of being 
endangered. Based on the available scientific evidence concerning 
population size and reproduction in the historically most important 
populations, the resilience of sturgeons to extirpation, and their 
capacity for re-population from small effective population size, the 
reviewer believed the appropriate ESA designation for both DPSs would 
seem to be threatened. The reviewer suggested that the threatened 
status would provide protection for the species from direct take of any 
kind and a basis for habitat restoration, while providing greater 
flexibility for scientific sampling, tissue analyses, and experimental 
manipulation than would endangered status. The reviewer stated the 
downside is that threatened status would provide a lower level of legal 
leverage relative to the larger industrial impacts, e.g., dams and 
bycatch, either of which may represent an insurmountable impasse to 
sturgeon recovery. The reviewer offered that under existing direct 
harvest prohibitions, threatened status has worked effectively for Gulf 
sturgeon recovery in rivers where dams and bycatch are not significant 
issues. It has not worked effectively where dams and bycatch are 
significant issues (e.g., the Pearl, Pascagoula, and Apalachicola 
rivers), although none of those populations seem in danger of 
extinction.
    Peer reviewer 2 stated that implicit in the definition of 
``endangered'' is that the species must be on a significant downward 
trend, or at least there is cause to believe that such a trend is 
happening now, or will happen soon, and concluded that is not the case 
on the Altamaha River in Georgia. However, this reviewer also commented 
that every single Atlantic sturgeon population has been decimated by 
overfishing and habitat degradation and that we have very little 
quantified evidence that the species as a whole has recovered, despite 
14 years of the protection afforded under the current moratorium on 
harvest and possession. Peer reviewer 2 recommended that a 
``threatened'' listing would seem appropriate for almost every Atlantic 
coast river, including the St. Marys, Satilla, Ogeechee, and Savannah 
Rivers in Georgia, with the Altamaha being the one exception, and an 
endangered listing would be difficult to support.
    Response: We must rely on the definition of ``endangered'' and 
``threatened'' species provided in section 3 of the ESA, the 
implementing regulations, and case law in applying the definitions to 
marine and anadromous species. Section 3 of the ESA defines an 
endangered species as one that is in danger of extinction throughout 
all or a significant portion of its range, and a threatened species as 
one that is likely to become endangered within the foreseeable future. 
Recent case law (In Re Polar Bear Endangered Species Act Listing and 
Sec.  4(d) Rule Litigation, D.D.C. WL 2601604 (June 30, 2011 Order); 
748 F.Supp.2d 19 (D.D.C. 2010)) regarding USFWS's listing of the polar 
bear as threatened provides a thorough discussion of the ESA's 
definitions and the Services' broad discretion to determine on a case 
by case basis whether a species is in danger of extinction. Upon 
listing the polar bear as threatened, USFWS's rule was challenged by a 
number of parties who claimed that the polar bear was in danger of 
extinction and should have been listed as endangered, and by others who 
conversely argued that the bear did not warrant listing even as 
threatened. The Court determined that neither the ESA nor its 
legislative history compels the interpretation of ``endangered'' as a 
species being in ``imminent'' risk of extinction, finding instead that 
the phrase ``in danger of extinction'' is ambiguous. The Court held 
that there is a temporal distinction between endangered and threatened 
species in terms of the proximity of the ``danger'' of extinction, 
noting that the definition of ``endangered species'' is phrased in the 
present tense, whereas a threatened species is ``likely to become'' so 
in the future. Thus, in the context of the ESA, the Services interpret 
an ``endangered species'' to be one that is presently at risk of 
extinction. A ``threatened species,'' on the other hand, is not 
currently at risk of extinction, but is likely to become so. In other 
words, a key statutory difference between a threatened and endangered 
species is the timing of when a species may be in danger of extinction, 
either now (endangered) or in the foreseeable future (threatened). The 
Court concluded, however, that the distinction is not based ``solely 
and unambiguously'' on the imminence of the species' anticipated 
extinction,'' and that Congress delegated responsibility to the 
Services to determine whether a species is presently `in danger of 
extinction' in light of the five ESA section 4(a)(1) factors and the 
best available science for that species. The Court ruled that although 
imminence of harm is clearly one factor that the Services weigh in 
their decision-making process, it is not necessarily a limiting factor. 
In many cases, the Services might appropriately find that the imminence 
of a particular threat is the dispositive factor that warrants listing 
a species as `threatened' rather than `endangered,' or vice versa. The 
Services have broad discretion to decide that other factors outweigh 
the imminence of the threat. In conclusion, the Court confirmed that 
the Services have flexibility to determine ``endangerment'' on a case-
by-case basis. Congress did not intend to make any single factor 
controlling when drawing the distinction between endangered and 
threatened species, nor did it seek to limit the applicability of the 
endangered

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category to only those species facing imminent extinction.
    Thus, contrary to the peer reviewers' comments, there is no per se 
requirement that a species be experiencing current or imminent 
significant downward trends, or that there are no single historical 
spawning river populations within the DPSs that are relatively abundant 
and simultaneously regularly-reproducing, in order to be listed as 
endangered (we discuss the status and data on the Altamaha River 
population in more detail in Comment 2 below). Our determination of 
endangerment for the Carolina and South Atlantic DPSs is based on the 
exercise of our expert professional judgment on the basis of the best 
available information for each DPS. In addition, we agree with the 
USFWS' judgment, discussed in its supplemental explanation filed in the 
polar bear litigation, that to be listed as endangered does not require 
that extinction be certain or probable, and that it is possible for a 
species validly listed as ``endangered'' to actually persist 
indefinitely.
    We determined that the Carolina and South Atlantic DPSs of Atlantic 
sturgeon are currently in danger of extinction throughout their ranges, 
on the basis of precipitous declines to population sizes, the 
protracted period in which sturgeon populations have been depressed, 
the limited amount of current spawning, and the impacts and threats 
that have and will continue to prevent population recovery. Populations 
of Atlantic sturgeon declined precipitously decades ago due to directed 
commercial fishing. The failure of Atlantic sturgeon numbers within the 
Carolina and South Atlantic DPSs to rebound even after the moratorium 
on directed fishing was established in 1998 indicates that impacts and 
threats from limits on habitat for spawning and development, habitat 
alteration, and bycatch are responsible for the risk of extinction 
faced by both DPSs. In addition, the persistence of these impacts and 
threats points to the inadequacy of existing regulatory mechanisms to 
address and reduce habitat alterations and bycatch. As described in the 
proposed listing rule, the Carolina DPS is estimated to number less 
than 3 percent of its historical population size; the South Atlantic 
DPS is estimated to number less than 6 percent of its historical 
population size, with all river populations except the Altamaha 
estimated to be less than 1 percent of historical abundance. There are 
an estimated 343 adults that spawn annually in the Altamaha River and 
less than 300 adults spawning annually (total of both sexes) in the 
river systems where spawning still occurs for each DPS (not all of the 
river systems occupied by the two Southeast DPSs currently support 
spawning, or effective spawning leading to recruitment).
    In light of threats and impacts, the low population numbers of 
every river population in the Carolina and South Atlantic DPSs suggests 
that the DPSs are currently in danger of extinction throughout their 
ranges; none of the populations are large or stable enough to alone or 
in combination provide any level of certainty for continued existence 
of either DPS, and thus, the peer reviewer's suggestion that these DPSs 
may not be endangered rangewide or in a significant portion of their 
ranges is erroneous. While the directed fishery that originally 
drastically reduced the numbers of Atlantic sturgeon has been closed, 
recovery of depleted populations is an inherently slow process for a 
late-maturing species such as Atlantic sturgeon, and they continue to 
face a variety of other threats that contribute to their risk of 
extinction. Their late age at maturity (5 to 19 years in the Southeast) 
provides more opportunities for individual Atlantic sturgeon to be 
removed from the population before reproducing. While a long life-span 
also allows multiple opportunities to contribute to future generations, 
it increases the timeframe over which exposure to the multitude of 
threats facing the Carolina and South Atlantic DPS can occur.
    Based on available information, we determined that to be viable, 
the Carolina and South Atlantic DPSs require multiple stable riverine 
populations, and we have added discussion to the final determination to 
better explain our reasoning. The importance of having multiple stable 
riverine spawning populations within each DPS and the need to maintain 
suitable habitat to support the various life functions (spawning, 
feeding, growth) of Atlantic sturgeon is best understood by looking at 
the concept of metapopulations. Each DPS, made up of multiple river 
populations, is analogous to a metapopulation, which is a ``population 
of populations'' (Levins, 1969), a group of spatially separated 
populations of the same species which interact at some level. 
Separation into metapopulations is expected by sturgeon and other 
anadromous fishes. While recolonization of northern rivers following 
post-Pleistocene deglaciation likely occurred following a stepping-
stone sequential model (Waldman et al., 2002), genetic analyses reveal 
that currently, there are very low rates of exchange between river 
populations. The amount and effectiveness of movement separates a 
metapopulation from a single large, patchy population. Low rates of 
connectivity through dispersal, with little to no effective movement, 
allow individual populations to remain distinct as the rate of 
migration between local populations is low enough not to have an impact 
on local dynamics or evolutionary lineages and distinguishes a 
metapopulation from a patchy population (Harrison 1994).
    Metapopulation persistence depends on the balance of extinction and 
colonization in a static environment (Hanski 1996). If habitat remains 
suitable following local extirpation, recolonization via immigrants 
into now-empty habitat may replace at least some of those losses 
(Thomas, 1994). However, if the cause of extinction is a deterministic 
population response to unsuitable conditions (e.g., lack of suitable 
spawning habitat, poor water quality, or disturbance of substrates 
through repeated dredging), the local habitat is likely to remain 
unsuitable after extinction and be unavailable for effective 
recolonization (Thomas, 1994). Therefore, recolonization is dependent 
upon both immigration from adjacent, healthy populations and habitat 
suitability. Because the DPSs are groups of populations, the stability, 
viability, and persistence of individual populations affects the 
persistence and viability of the larger DPS. The loss of any population 
within a DPS will result in: (1) A long-term gap in the range of the 
DPS that is unlikely to be recolonized, or recolonized only very 
slowly; (2) loss of reproducing individuals; (3) loss of genetic 
biodiversity; (4) potential loss of unique haplotypes; (5) potential 
loss of adaptive traits; and (6) reduction in total number. The loss of 
a population will negatively impact the persistence and viability of 
the DPS as a whole as fewer than two individuals per generation 
currently spawn outside their natal rivers (Wirgin et al., 2000; King 
et al., 2001; Waldman et al., 2002).
    The persistence of individual populations, and in turn the DPS, 
depends on successful spawning and rearing within the freshwater 
habitat, the immigration into marine habitats to grow, and then the 
return of adults to natal rivers to spawn. Information on Atlantic 
sturgeon spawning within the Carolina and South Carolina DPSs is 
limited. In the proposed listing rule, we presumed spawning was 
occurring if young-of-the-year (YOY) were observed or mature adults 
were present in freshwater portions of the system.

[[Page 5918]]

Within the Carolina DPS, we concluded that spawning is occurring, or 
occurred in the recent past, in the following rivers based on these 
data:
    1. Roanoke River--collection of 15 YOY (1997-1998); single YOY 
(2005).
    2. Tar and Neuse Rivers--one YOY (2005).
    3. Cape Fear--upstream migration of adults in the fall, carcass of 
ripe female upstream in mid-September.
    4. Winyah Bay--running ripe male in Great Pee Dee River (2003).
    Within the South Atlantic DPS, we concluded that spawning is 
occurring, or has occurred in the recent past, in the following rivers 
based on these data:
    1. ACE Basin--1,331 YOY (1994-2001); gravid female and running ripe 
male in the Edisto (1997); 39 spawning adults (1998).
    2. Savannah River--22 YOY (1999-2006); running ripe male (1997).
    3. Ogeechee River--age-1 captures, but high inter-annual 
variability (1991-1998); 17 YOY (2003); 9 YOY (2004).
    4. Altamaha River--74 captured/308 estimated spawning adults 
(2004); 139 captured/378 estimated spawning adults (2005).
    5. Satilla River--4 YOY and spawning adults (1995-1996).
    These data indicate that spawning occurs within the Carolina and 
South Atlantic DPSs; they do not indicate the frequency of annual 
spawning events or the degree to which spawning in these systems leads 
to population growth, persistence, or viability. The extent and 
effectiveness of spawning events is unknown and likely precarious in 
many rivers, given ongoing threats that limit population size and 
spawning success, such as water quality and restricted access to 
upstream spawning areas (75 FR 61904). Peer reviewer 1 stated that data 
from the proposed listing rule indicate the spawning populations in the 
Santee-Cooper system appear to remain functional and not particularly 
vulnerable to extinction; however, in the proposed listing rule, we 
noted our determination that spawning may occur in the Santee and/or 
the Cooper Rivers, but it may not result in successful recruitment. 
Lack of access to historical spawning habitat due to dams restricts 
spawning to areas just below the dam. The proximity of these spawning 
areas to salt water may result in very high mortality to any larvae 
spawned in those systems.
    In addition to spawning success, it is difficult to quantify 
spawning potential within the two DPSs, given the lack of population 
estimates. Currently, the number of Atlantic sturgeon in the Carolina 
DPS is estimated to be 3 percent of historical population size and the 
South Atlantic DPS is estimated to be 1 percent of historical 
population size, with the exception of the Altamaha River population, 
estimated to be at 6 percent of historical population size. Although 
the largest impact that caused the precipitous decline of the species 
has been curtailed (directed fishing), the population size has remained 
relatively constant at these greatly reduced levels for approximately 
100 years.
    In response to comments about divergence from the status review 
report's listing conclusions for the Carolina and South Atlantic DPSs, 
NMFS' Protected Resources Divisions have the responsibility to make 
listing recommendations to the Assistant Administrator. Status review 
reports are an important part of the information base for such 
recommendations, but NMFS must independently review the information in 
status review reports and apply the ESA's listing determination 
requirements in accordance with regulations, case law, and agency 
guidance. The Atlantic Sturgeon Status Review Report states that 
``risks of extinction assessments are performed to help summarize the 
status of the species, and do not represent a decision by the Status 
Review Team on whether the species should be proposed for listing as 
endangered or threatened under the ESA'' (page 106; ASSRT, 2007). 
Subsequent to the status review report, we conducted a comprehensive 
assessment of the combined impact of the five ESA section 4(a)(1) 
factors across the Carolina and South Atlantic DPSs in classifying 
extinction risk for each DPS. We focused on evaluating whether the DPSs 
are presently in danger of extinction or the danger of extinction is 
likely to develop in the future. In our proposed rules to list 5 DPSs 
of Atlantic sturgeon, we determined that each DPS was at greater risk 
of extinction than determined by the 2007 ASSRT. While the ASSRT did 
discuss and consider how multiple threats might act in concert on a 
given subpopulation, they ultimately classified extinction risk using 
the highest single threat score on an individual population within a 
DPS, or within what they considered to be a significant portion of a 
DPS's range (pages 108-109; ASSRT, 2007). We evaluated the overall 
stability and viability of the DPSs as a whole based on the combined 
statuses of the component river populations and the impacts of threats 
and impacts across the DPS, when determining extinction risk of each 
DPS, because, as discussed above, the Carolina and South Atlantic DPSs 
require multiple stable river populations. In addition, because of the 
lapse in time between the development of the status review report 
(ASSRT, 2007) and the publication of the proposed listing rule (75 FR 
61904, October 6, 2010), new information on bycatch (ASMFC, 2007) and 
water quality (USEPA, 2008), as well as climate change (IPCC, 2008) and 
drought (e.g., USGS, 2007), became available to us, and we incorporated 
this information into our listing determinations.
    Since publication of the proposed rules, a Federal District Court 
has thoroughly reviewed and considered the distinction between the 
definitions of threatened and endangered species in the ESA, explained 
by the USFWS in litigation challenging their determination to list the 
polar bear as threatened and not endangered, as discussed above (In re. 
Polar Bear Endangered Species Act Litigation). Prompted by this 
decision and the comments received by the Services requesting further 
explanation of the divergence of our proposed listing statuses and the 
conclusions of the ASSRT, we have reviewed our determinations and 
concluded that all the proposed listings of specific DPSs as 
``threatened species'' or ``endangered species,'' respectively, satisfy 
the requirements of the relevant ESA definition. Thus, we have not 
changed these classifications in the final rules. We found that the 
Carolina and South Atlantic DPSs are presently in danger of extinction, 
and thus, listing them as endangered is warranted.
    As discussed above, because a DPS is a group of populations (a 
metapopulation), the stability, viability, and persistence of 
individual populations affects the persistence and viability of the 
larger DPS. The persistence of individual populations, and in turn the 
DPS, depends on successful spawning and rearing within the freshwater 
habitat, the immigration into marine habitats to grow, and then the 
return of adults to natal rivers to spawn. While the directed fishery 
that originally drastically reduced the numbers of Atlantic sturgeon 
has been closed, modification and curtailment of Atlantic sturgeon 
habitat resulting from dams, dredging, and degraded water quality are 
inhibiting spawning and population rebounding throughout both DPSs, and 
contributing to their endangered statuses. Existing water allocation 
issues will likely be compounded by human population growth and 
potentially by climate change as well. Climate change is predicted to 
elevate water temperatures and exacerbate nutrient-loading,

[[Page 5919]]

pollution inputs, and lower dissolved oxygen (DO), all of which are 
currently negatively impacting the Carolina and South Atlantic DPSs. 
Continued overutilization of Atlantic sturgeon from bycatch in multiple 
commercial fisheries in both their marine and freshwater habitats is 
another ongoing impact to the Carolina and South Atlantic DPSs that is 
contributing to their endangered status. Atlantic sturgeon taken as 
bycatch may suffer immediate mortality. In addition, stress or injury 
to Atlantic sturgeon taken as bycatch but released alive may result in 
increased susceptibility to other threats, such as poor water quality 
(e.g., exposure to toxins and low DO). This may result in reduced 
ability to perform major life functions, such as foraging and spawning, 
or may even result in post-capture mortality. Several of the river 
populations in the South Atlantic DPS (e.g., the Ogeechee and the 
Satilla) are stressed to the degree that any level of bycatch could 
have an adverse impact on the status of the DPS (ASSRT, 2007).
    The Carolina and South Atlantic DPSs are in danger of extinction 
now, due to precipitous declines from historical abundances to 
population sizes that are low and potentially unstable throughout the 
DPSs. As discussed above, both DPSs exhibit sporadic spawning with 
uncertain effectiveness. Population rebuilding and recovery in both 
DPSs is being inhibited by impacts due to habitat curtailment and 
degradation, and due to capture as bycatch in commercial fisheries. The 
current low levels of abundance noted previously in combination with 
the high degree of threat to the two Southeast DPSs put them in danger 
of extinction throughout their ranges; none of the populations making 
up the DPSs are large or stable enough to provide any level of 
certainty for continued existence of either DPS.
    Regarding the conclusion that the Carolina and South Atlantic DPSs 
should be listed as threatened, peer reviewer 1 incorrectly stated that 
listing as threatened provides protection from direct take of any kind. 
The ESA's prohibition against take contained in section 9 only applies 
to endangered species, unless a section 4(d) rule is in place to extend 
the take prohibition to a threatened species. If we determine that the 
Carolina and South Carolina DPSs meet the ESA's definition of 
endangered, then we cannot list the species as threatened for the 
purposes of providing flexibility for scientific sampling, tissue 
analyses, and experimental manipulation. We also cannot list the DPSs 
as endangered to obtain legal leverage relative to the larger 
industrial impacts, e.g., dams and bycatch, as suggested by the 
reviewer. Rather, we must make our listing determination based on 
application of the statutory factors.
    Comment 2 (new information on Altamaha River population): Peer 
reviewer 2 presented data on the estimated abundance of age-1, river 
resident Atlantic sturgeon in the Altamaha River from 2004 to 2010, 
which showed large estimated increases in this age group in 2009 and 
2010. The peer reviewer also stated that he and other researchers are 
beginning to detect slower growth in age-1 Atlantic sturgeon in the 
Altamaha and he attributed this to density-dependent factors that are 
beginning to limit available resources. The reviewer stated that a few 
more years of data are needed to determine if the increasing trend is 
real, but none of the other variables tested (e.g., river flows or 
temperature) explain the trend. The peer reviewer attributed the 
apparent increases in juveniles in the Altamaha to the moratorium on 
the harvest of adults. The peer reviewer stated that data are not 
available to determine whether this trend is occurring in other 
spawning populations. The reviewer stated that catch per unit effort 
(CPUE) data are worthless without calibration or validation and we do 
not have historical abundance data to know what abundance should be on 
any of the river systems, though there is general agreement that 
populations are a fraction (less than 1 to 10 percent) of historical 
abundance. The reviewer recommended that long-term monitoring of 
recruitment using mark-recapture of age-1 juveniles be implemented on 
key river systems.
    Response: We are encouraged by the apparent increases in juvenile 
Atlantic sturgeon estimated by the peer reviewer's research in the 
Altamaha River and appreciate the contribution of this information for 
our consideration in our listing determination. We revised the relevant 
discussion in the text from the proposed listing rule to include this 
information. We agree that additional years of data are necessary to 
confirm this trend in the Altamaha and that we cannot determine whether 
similar trends may be occurring in other river populations. This 
information is consistent with information we provided in the proposed 
listing rule, which refers to the Altamaha River as having a larger and 
healthier Atlantic sturgeon population than any other river in the 
Southeast. The proposed listing rule also stated that juvenile Atlantic 
sturgeon from the Altamaha are relatively more abundant in comparison 
to other rivers in the region.
    Peer reviewer 2 noted that density-dependent factors may be 
starting to limit available resources. We are interested in working 
with the reviewer and other researchers to determine whether habitat 
modification, which we describe in detail in the proposed listing rule, 
is a contributing factor to the limitation of resources in addition to 
the increase in numbers of juvenile Atlantic sturgeon utilizing the 
resources. While water quality in the Altamaha River is good at this 
time, the drainage basin is dominated by silviculture and agriculture, 
with two paper mills and over two dozen other industries or 
municipalities discharging effluent into the river. Nitrogen and 
phosphorus concentrations are increasing, and eutrophication and loss 
of thermal refugia are growing concerns for this and other rivers in 
the South Atlantic DPS. The Altamaha is one of the rivers with current 
and pending water allocation issues. We are currently funding a project 
through the ESA section 6 program to map habitats in four Georgia 
rivers, including the Altamaha, and this may be a valuable step in 
answering this question.
    We agree that CPUE data should be used in the proper context and 
that historical abundance data, other than data from commercial 
fisheries in the late 19th century, are not available. However, as 
required by section 4(b)(1)(A) of the ESA, we must make our listing 
determination based on the best scientific and commercial data 
available. When only CPUE and other fishery-dependent data were 
available to us, we clarified and acknowledged the constraints of the 
data, and we conclude that we used them in a valid manner. This is 
further addressed in our responses to several public comments on 
specific sections of the proposed listing rule (e.g., comments 19, 23, 
24, 25, and 29).
    Comment 3 (import of the 2003 workshop): Peer reviewer 1 stated the 
proposed listing rule appeared to dismiss any evidence of an increase 
in Carolina DPS populations of Atlantic sturgeon, citing a statement in 
the proposed listing rule (page 61904-61905) that ``the [NMFS-sponsored 
2003] workshop revealed mixed results in regards to the status of 
Atlantic sturgeon populations, despite the coast-wide fishing 
moratorium. Some populations seemed to be recovering while others were 
declining.'' The reviewer stated that at the time of the 2003 workshop, 
the moratorium on direct harvest and possession of Atlantic sturgeon 
had only been in effect for 4 years and this was not sufficient time 
for populations to increase in response

[[Page 5920]]

to the protective measures. The reviewer concluded the observations 
available at the time of the 2003 workshop do not provide a scientific 
basis for listing the Carolina DPS as endangered.
    Response: The information we evaluated in making our proposed 
listing determination of endangered for the Carolina and South Atlantic 
DPSs of Atlantic sturgeon was not confined to the results of the 2003 
workshop. As stated in the proposed listing rule, the information 
gathered at the 2003 workshop, including the equivocal evidence that 
some populations appeared to be recovering while others were declining, 
prompted us to complete a new review of Atlantic sturgeon status, which 
was published in 2007. Since the ASSRT's completion of its status 
review, we obtained and evaluated additional information on threats to 
Atlantic sturgeon (see our response to comment 1). Our evaluation of 
this information indicates that the moratorium on directed fisheries 
has not and will not be sufficient to address the impacts that are 
preventing sturgeon populations from recovering (including lack of 
access to required habitat, and habitat quality issues). Section 
4(b)(1)(A) of the ESA stipulates that listing decisions be made using 
the best available scientific and commercial information, therefore we 
used information from the 2007 status review report (which incorporated 
information from the 2003 workshop) and new information in forming our 
determination. Our responses to comments from the public further detail 
our use of information available at the time of the proposed listing 
rule, as well as our consideration of new information submitted during 
the public comment period.
    Comment 4 (viability of small Atlantic sturgeon populations): The 
estimated 343 spawning adult Atlantic sturgeon in the Altamaha River 
exceeds the number of spawning adults in the ``very viable'' Yellow 
River Gulf sturgeon population, according to peer reviewer 1. Peer 
reviewer 1 stated that information presented in Schueller and Peterson 
(2010) suggests a very robust reproductive response to protection of 
adult spawners under the Atlantic sturgeon moratorium. From these data, 
the reviewer stated that it seems highly improbable that the Altamaha 
River population is at risk of extinction and a listing of endangered 
does not seem applicable to the Altamaha population within the South 
Atlantic DPS. The reviewer stated that if the Altamaha population 
follows the model of the Suwannee River Gulf sturgeon population after 
harvest was banned, then overall population growth in the next decade 
will be exponential until density-dependent population controls come 
into play. Peer reviewer 1 also stated that the ``less than 300 
spawning adults'' criterion in the proposed listing rule for 
classifying a river population as vulnerable to extinction sets a 
``very high, probably unrealistic, bar,'' and one not conforming to 
scientific literature documenting sturgeon population recovery from 
much smaller effective breeding population sizes (20-80 spawning 
females, based on examples provided by the reviewer). Peer reviewer 1 
stated that sturgeon species have the documented ability to establish/
re-establish viable populations over a short timeframe (10 to 20 
years), starting from ``a few tens'' of spawning adults without 
negative fitness impacts from low genetic diversity.
    Response: As explained above, NMFS does not agree with peer 
reviewer 1's premise that an endangered listing would only be 
appropriate if no single historical spawning river within that DPS 
appeared to sustain both a relatively abundant and simultaneously 
regularly-reproducing Atlantic sturgeon population. We note that the 
Yellow River population of Gulf sturgeon referred to as ``very viable'' 
by the reviewer is listed as threatened under the ESA. While the number 
of spawning adult Atlantic sturgeon in the Altamaha River may be larger 
than that of Gulf sturgeon in the Yellow River, the peer reviewer noted 
that the Yellow River population is one that has rebounded since it was 
listed. The Altamaha River population of Atlantic sturgeon is estimated 
to be at only 6 percent of its historical abundance. While there is a 
moratorium on harvest and possession of Atlantic sturgeon, the species 
is not currently afforded the protections of section 9 of the ESA, nor 
do they benefit from the consultation and permitting responsibilities 
of ESA sections 7 and 10, that apply to the listed Gulf sturgeon. 
Information provided by peer reviewers 1 and 2 indicated recent (2009-
2010) increases in the estimated number of juveniles in the Altamaha 
River. We are encouraged by this and hope that the Altamaha River 
population does exhibit exponential growth, as the Suwannee River Gulf 
sturgeon population did following listing. However, our listing 
determination is based on the best information currently available to 
us, and we do not feel that the information provided on increases in 
juvenile Atlantic sturgeon in the Altamaha River or the comparison to 
Gulf sturgeon populations in the Suwannee and Yellow Rivers provides a 
basis for revising our proposed determination that the South Atlantic 
DPS be listed as endangered.
    In response to the reviewer's comment that the ``less than 300 
spawning adults criterion'' sets a ``very high, probably unrealistic, 
bar'', we clarify that the 300 spawning adults per year was an estimate 
of the relative sizes of Atlantic sturgeon river spawning populations, 
based on the available information on the annual spawning adult 
abundance measured in the Altamaha River (343 spawning adults) and the 
fact that it is the largest population in the Southeast, combined with 
qualitative and quantitative anecdotal information from the other river 
systems. The 300 spawning adults per year estimate does not constitute 
a criterion or a bar for listing and/or recovery as a general matter. 
Rather, the estimate is evaluated in the specific context of the 
Atlantic sturgeon river populations and the impacts and threats they 
face. These populations likely have the capacity to recover, as the 
reviewer suggested, if existing and future impacts and threats are 
alleviated. The low estimated population numbers in each of the river 
systems within the DPSs (1-6 percent of historical abundance), combined 
with the ongoing impacts and threats from habitat modification and 
bycatch, indicate that the populations are small and vulnerable, and 
the DPSs they comprise are in danger of extinction.
    Comment 5 (sturgeon ability to recolonize systems; genetic 
exchange): Peer reviewer 1 stated that sturgeon species are resilient 
and capable of repopulating an extirpated river, or colonizing a new 
river, if habitat remains available, dams do not block spawning ground 
access, water quality is satisfactory, and a competing sturgeon 
population is not already established. A natal river population, well-
established over a long span of geological time and highly adapted to 
its respective natal river, would not realize success in colonizing 
another river already populated by a second population better adapted 
to its respective natal river than a potential colonist. The reviewer 
stated that the low rate of genetic exchange displayed among adjacent 
sturgeon populations does not reflect the incapacity of the species to 
colonize, but the competitive advantage held by a pre-established natal 
river population facing migrant individuals. The reviewer provided 
examples of recolonization by Atlantic sturgeon in bays and rivers from 
New England to Labrador and Newfoundland within a span of 10,000 years 
following deglaciation. The

[[Page 5921]]

reviewer stated the northernmost and most genetically conservative 
Atlantic sturgeon population re-colonized over 1,500 miles of coastline 
within 40 generations (and probably much fewer) in addition to 
undertaking a successful, essentially instantaneous, 3,300 mile 
migration to colonize the Baltic Sea 1,200 years ago. The reviewer also 
provided an example of Gulf sturgeon rebounding in Gulf Coast river 
systems. Peer reviewer 1 stated that following state harvest 
prohibitions on the Gulf sturgeon and its listing as threatened under 
the ESA, some river populations have rebounded (the Yellow, 
Choctawhatchee, and Suwannee river populations). The reviewer concluded 
the logic in the proposed listing rule is not compelling that if one of 
the DPSs were to be completely extirpated, it would remain so over a 
long span of time. Peer reviewer 3 stated, in reference to the genetic 
analyses showing fewer than two individuals per generation spawn 
outside their natal rivers, that this reflects the average number of 
individuals and noted it would be useful to compare this to straying 
determined from tagging data.
    Response: We agree with the peer reviewer's comment that the low 
rate of genetic exchange displayed between Atlantic sturgeon river 
populations may reflect the competitive advantage held by pre-
established natal river populations facing migrant individuals. We 
revised the relevant discussion in the text from the proposed listing 
rule to include this information. However, as stated in the proposed 
listing rule, we do not expect Atlantic sturgeon that originate from 
other river systems to recolonize extirpated systems and establish new 
spawning populations, except perhaps over a long time frame (i.e., many 
Atlantic sturgeon generations). Though the reviewer provided an example 
of Atlantic sturgeon colonizing the Baltic Sea 1,200 years ago after a 
single migration, other examples of recolonization provided took 40 
generations (approximately 1,000 years, based on a 25-year generation 
period) to 10,000 years, which is consistent with our statement in the 
proposed listing rule. Further, recolonization occurred in the absence 
of present-day human impacts, such as habitat modifications and 
mechanized fishing.
    We noted the reviewer's comment that sturgeon species are resilient 
and capable of repopulating an extirpated river or colonizing a new 
river if habitat remains available, dams do not block spawning ground 
access, and water quality is satisfactory. As discussed extensively in 
the proposed listing rule and in our responses to comments in this 
document, Atlantic sturgeon in the Carolina and South Atlantic DPSs and 
the rivers within their ranges are affected by habitat modification and 
destruction, blocked access to spawning grounds, downstream habitat 
impacts caused by dams, and water quality (and quantity) issues. Thus, 
the commenter's stated conditions for expecting recolonization by 
Atlantic sturgeon are not met. Atlantic sturgeon from the Carolina and 
South Atlantic DPSs are also taken as bycatch in fisheries. Regarding 
the statement that following state harvest prohibitions on the Gulf 
sturgeon and its listing as threatened under the ESA, some river 
populations have rebounded (the Yellow, Choctawhatchee, and Suwannee 
river populations), the rivers that have rebounded have two factors in 
common versus those which have not rebounded (e.g., the Apalachicola, 
Pascagoula, and Pearl river populations): (1) No mainstem dam on the 
natal river limiting Gulf sturgeon access to upriver spawning grounds 
or YOY access to riverine feeding habitat; and, (2) no major commercial 
fishery causing Gulf sturgeon bycatch mortality in the natal river, 
natal river estuary, or adjacent marine waters. Assessing the impacts 
of these two factors may be equally as important to sturgeon population 
recovery as is protection from all other impacts, now that direct 
harvest has been stopped. We agree with these comments by the peer 
reviewer and also believe that these threats associated with dams, 
habitat, water quality, and bycatch would hamper and slow 
recolonization of extirpated river systems. One reviewer acknowledged 
that rivers, watersheds, and coastal habitats inhabited by Atlantic 
sturgeon have been drastically modified and impacted by human 
activities (dammed, channelized, de-watered, diverted, dredged, mined, 
sedimented, polluted, deforested, developed, populated by introduced 
species, etc.) and that it would be remarkable to achieve recovery to 
even 10-30 percent of the 1890 carrying capacity of individual sturgeon 
rivers.
    In reference to peer reviewer 3's suggestion about comparing the 
degree of straying from tagging studies to the estimate of straying 
from the genetic studies, we agree this could be a valuable exercise in 
the future when we have the necessary information on river of origin 
(based on genetic analyses) and the degree of straying (from tagging 
and relocation studies). While the estimate of less than 2 individuals 
spawning in rivers outside their natal system is a measure of 
successful transfer of genetic information from a fish originating from 
another system, the analysis suggested by the peer reviewer would 
provide us with knowledge of how many fish actually stray into another 
system and potentially attempt to spawn. This could also provide 
insight into the comments by the first peer reviewer that lack of gene 
flow between river populations is due to reduced success from 
competition and not from lack of attempts at migrant spawning.
    Comment 6 (issues with estimating sturgeon abundance): According to 
one peer reviewer, targeted Atlantic sturgeon population studies in the 
Roanoke River and Santee-Cooper system, as well as most other river 
systems, have been limited in duration, intensity, and continuity such 
that population estimates may be substantially underestimated. Peer 
reviewer 1 noted that sturgeon species are cryptic fish found in deep, 
mainstem rivers. They are rarely observed visually, not typically 
sampled in many commercial river fisheries targeting other fish species 
(with the exception of the shad gill net fishery), and are rarely 
caught by recreational anglers. The reviewer stated that this 
illustrates that presence and abundance of sturgeon cannot be based on 
incidental catches from commercial fisheries or scientific sampling not 
specifically targeting sturgeon. The reviewer stated that in the past, 
sturgeon abundance has often been vastly underestimated until an 
appropriate and dedicated reporting or sampling program was undertaken. 
The reviewer recommended that only continuous, standardized mark-
recapture efforts spanning sufficient time (a minimum of 3 years, but 
realistically greater than 5 years) can provide reliable preliminary 
abundance estimates.
    Response: The majority of the data presented in the proposed 
listing rule came from studies targeting Atlantic sturgeon or from 
fisheries that are known to have a high incidence of interaction with 
Atlantic sturgeon (i.e., gillnet fisheries). As much as possible, we 
clarified the data collection methods and constraints, and any 
assumptions we made. This is also discussed in our response to comment 
2. We have used the best available commercial and scientific 
information to evaluate the status of the Carolina and South Atlantic 
DPSs, but we agree with the reviewer that long-term, continuous, 
standardized studies of Atlantic sturgeon abundance are needed.
    Comment 7 (viable population sizes and sturgeon genetics): Peer 
reviewer 1 stated the minimum viable population

[[Page 5922]]

sizes of several hundreds to several thousands of individuals advanced 
in the literature are not particularly instructive with respect to 
sturgeon species based on new genetic information (Kreiger et al., 
2006). The reviewer commented that sturgeon are polyploid and the 
significance of polyploidy upon genetic diversity has just emerged. 
Most fishes are diploid with 40-50 chromosomes, a number similar to 
most vertebrates. However, all sturgeons are polyploid, having 
approximately 120 chromosomes (tetraploid, 4N), 240 chromosomes 
(octoploid, 8N) or more, including species with 12N or 16N ploidy. 
Polyploidy allows for multiple alleles (not just two as in diploid 
species) at a given gene locus, allowing for intra-individual genetic 
variation (Kreiger et al. 2006). The reviewer suggested that this might 
explain the high degree of plasticity displayed by sturgeon populations 
and the documented ability of sturgeons to repopulate from very few 
spawning adults without apparent inbreeding depression. He concluded 
that until we gain a deeper understanding of the genetics of polyploidy 
and the implications regarding sturgeon population dynamics, any 
discussion of minimum viable population size for sturgeon populations 
cannot be phrased in terms of what we know about inbreeding depression 
in diploid mammal populations. Thus, the 50/500 rule of thumb cited in 
the proposed listing rule may be an inappropriate criterion by which to 
assess viability of sturgeon populations, and we do not know how few 
polyploid sturgeons are too few to sustain a viable population.
    Response: We appreciate the peer reviewer's input on the polyploid 
nature of Atlantic sturgeon and how this genetic characteristic may 
affect our evaluation of minimum viable population sizes in our listing 
determination. We revised the relevant discussion in the text from the 
proposed listing rule to include this information. As noted by the 
reviewer, we need a deeper understanding of the genetics of polyploidy 
and the implications regarding sturgeon population dynamics. We are not 
sure how polyploidy in Atlantic sturgeon will affect their recovery, 
but even if it allows the species to repopulate from relatively fewer 
individuals without inbreeding depression, there is no assurance that 
this will occur. Other polyploid Acipenser species have required 
listing under the ESA, such as shortnose sturgeon (listed as endangered 
in 1967), Gulf sturgeon (listed as threatened in 1991), and green 
sturgeon (listed as threatened in 2006). In the case of the shortnose 
sturgeon, recovery has not been achieved even though it has been 
protected for almost 45 years. Further, the polyploid nature of 
Atlantic sturgeon may further support the need for protection under the 
ESA. Southern populations of Atlantic sturgeon exhibit high diversity 
and many low frequency (and sometimes private) haplotypes (Grunwald et 
al., 2008). Allendorf and Leary (1988) noted that in polyploid 
cutthroat trout, alleles constituting the majority of the variation in 
the species are found in only one or two local populations, but they 
often occur at high frequencies in those populations. They concluded 
preserving the genetic variation in cutthroat trout entails preserving 
as many local populations as possible. Finally, a polyploid nature may 
not be sufficient to promote recovery in Atlantic sturgeon populations, 
even if it is indicative of smaller viable population sizes, given the 
nature and number of ongoing impacts and threats to sturgeon and their 
habitats.
    Comment 8 (ACE Basin populations): Peer reviewer 1 commented that 
the statement in the proposed listing rule that ``the low population 
numbers of every river population in the Carolina and South Atlantic 
DPSs put them in danger of extinction throughout their ranges; none of 
the populations are large or stable enough to provide with any level of 
certainty for continued existence of Atlantic sturgeon in this part of 
its range,'' seems contrary to the data from recent Atlantic sturgeon 
sampling results for the Altamaha, Savannah, and ACE Basin. This 
reviewer asserts that collection of 3,000 juvenile Atlantic sturgeon 
from the ACE Basin in seven years of sampling is not a low number.
    Response: The proposed listing rule stated that 3,000 juvenile 
Atlantic sturgeon were collected in the ACE Basin (consisting of the 
Ashepoo, Combahee, and Edisto Rivers) between 1994 and 2001. While the 
reviewer did not believe this is a low number, we disagree. The ACE 
Basin and every system in the South Atlantic DPS, with the exception of 
the Altamaha River, is estimated to be at 1 percent of its historical 
abundance and to have less than 300 adult Atlantic sturgeon spawning 
per year (the Altamaha is estimated to be at 6 percent of its 
historical abundance and have 343 spawning adults per year). However, 
the statement from the proposed listing rule referred to by the peer 
reviewer was not referring strictly to population size, but rather to 
the restrictive effects of low population numbers in all component 
river populations on the DPSs' ability to respond to threats. This 
statement was taken from a section of the proposed listing rule 
addressing viable population size, and the statement was meant to be 
taken in the context of the statements that preceded it: ``The concept 
of a viable population able to adapt to changing environmental 
conditions is critical to Atlantic sturgeon, and the low population 
numbers of every river population in the Carolina and South Atlantic 
DPSs put them in danger of extinction throughout their ranges.'' Low 
population numbers hamper recovery by making the populations less 
resilient to the dangers they continue to face from being taken as 
bycatch and from the loss, reduction, and degradation of habitat 
resulting from dams, dredging, and changes in water quality parameters 
(such as depth, temperature, velocity, and dissolved oxygen). Because 
these DPSs are groups of populations, the stability, viability, and 
persistence of individual populations affects the persistence and 
viability of the larger DPS. In the example of the ACE Basin, the 
capture of 3,000 juvenile Atlantic sturgeon between 1994 and 2001 (an 
average of 375 Atlantic sturgeon juveniles per year) alone is not 
sufficient to indicate that the DPS can persist, given the low 
population numbers in each of the river systems in the DPS and the 
existing threats to the species (e.g., bycatch, habitat degradation), 
some of which may worsen as a result of water allocation issues and 
climate change.
    Comment 9 (relevance of historical abundance estimates): Peer 
reviewer 1 commented on the statements in the proposed listing rule 
that the Carolina DPS is estimated to number less than 3 percent of its 
historical population size; the Altamaha River is suspected to be less 
than 6 percent of its historical abundance; and the abundances of the 
remaining river populations within the South Atlantic DPS are estimated 
to be less than 1 percent of what they were historically. This 
describes the depleted status of these populations, and provides a 
reference point from which to gauge re-population. Peer reviewer 1 
commented that caution should be exercised in using 1890s fisheries 
abundance as the recovery target, and similarly as a metric against 
which population recovery can be measured. Rivers, watersheds, and 
coastal habitats inhabited by Atlantic sturgeon have been drastically 
modified and impacted by human activities (dammed, channelized, de-
watered, diverted, dredged, mined, sedimented, polluted,

[[Page 5923]]

deforested, developed, populated by introduced species, etc.) and it 
would be remarkable to achieve recovery to even 10-30 percent of the 
1890 carrying capacity of individual sturgeon rivers. The reviewer 
believed the remaining 1-6 percent of the historical population numbers 
represents a good foundation for population recovery at the beginning 
of an unprecedented era of harvest prohibition, habitat restoration, 
and conservation awareness.
    Response: The discussion in the proposed listing rule of current 
population size relative to historical levels was not meant to imply 
those levels would be recovery targets. Relative population size was 
intended as a metric of the depth of the DPS' decline over time. The 
reviewer's observation that permanent habitat modifications have 
reduced potential population levels by 70-90 percent underscores the 
significance of the multiple habitat threats facing Atlantic sturgeon.
    Comment 10: Peer reviewer 1 took issue with the statement in the 
proposed listing rule that ``recovery of depleted populations is an 
inherently slow process for a late-maturing species such as Atlantic 
sturgeon.'' This reviewer stated this thesis is fundamentally faulty 
for sturgeon and other species. Late maturity in a species has little 
to do with speed of population increase beyond the initial lag period 
of one generation span or less, after which reproduction is continuous. 
As per the theory of Malthus, the reviewer stated that any population 
of any species in nature, whether of mice or elephants, will increase 
geometrically, as long as resources are not limiting. For a sturgeon 
population depleted by overfishing, once subadults are permitted to 
mature and spawn without being harvested first, recovery can be quite 
rapid if other human impacts have not removed or severely restricted 
essential resources.
    Response: We have considered the peer reviewer's comment. However, 
we continue to find that the Atlantic sturgeon's life history traits 
are hindering its recovery in several ways, as supported by scientific 
literature. For example, Meyers and Worm (2005) state, ``from the land 
it is well known that large species with high ages at maturity are 
particularly vulnerable to extinction (Purvis et al., 2000). There is 
no reason to believe that this may be different in the ocean (Myers & 
Mertz, 1998; Hutchings, 2001; Dulvy and Reynolds, 2002; Dulvy et al., 
2003).'' Specifically regarding the Atlantic sturgeon, Balazik et al. 
(2010) state that ``the Atlantic sturgeon's life history (high age of 
maturation and 2-5 years between female broods) probably inhibits 
population recovery (Boreman, 1997; Smith and Clugston, 1997).'' 
Gardmark et al. (2003) states that ``small populations are sensitive to 
stochastic effects, especially so if not all mature individuals 
reproduce,'' and as noted in the proposed listing rule (as well as 
Balazik et al., 2010, above), adult Atlantic sturgeon do not reproduce 
every year.
    There are several ways the Atlantic sturgeon's life history traits 
may be hampering recovery. The species' late age at maturity provides 
more opportunities for individuals to be removed from the population 
before reproducing. The limited ability of small populations with non-
annual spawning adults to respond to stochastic effects could greatly 
affect Atlantic sturgeon recovery, and human population increases and 
climate change are likely to exacerbate existing water quality and 
quantity problems. Based on their life history, Atlantic sturgeon 
populations are more sensitive to fishing (bycatch) mortality than 
other coastal fish species. Like other K-selected species (which have 
large body size, long life expectancy, and produce fewer offspring, 
versus r-selected species, which are characterized as having high 
fecundity, small body size, early maturity onset, short generation 
time, and the ability to disperse offspring widely), Atlantic sturgeon 
are long-lived, have an older age at maturity, and have lower maximum 
fecundity values, with 50 percent of the lifetime egg production for 
Atlantic sturgeon occurring later in life (Boreman, 1997). That species 
with K-selected life history traits, such as Atlantic sturgeon, exhibit 
greater sensitivity to bycatch mortality is also supported by Baskett 
et al. (2006): ``fisheries have a greater long-term negative impact on 
species with lower population growth rates, later maturation, larger 
organism size, and greater longevity than on species with faster 
production (Jennings et al., 1998; Heino and God[oslash], 2002).''
    We agree with the peer reviewer's comments that any species with 
discrete generations or distinct breeding seasons will increase 
geometrically, ``as long as resources are not limiting.'' We also agree 
that Atlantic sturgeon can recover if fisheries mortality is reduced, 
allowing sub-adults to recruit to the spawning population, and ``if 
other human impacts have not removed or severely restricted essential 
resources.'' We stated in the proposed listing rule that the species' 
``long life-span also allows multiple opportunities to contribute to 
future generations provided the appropriate spawning habitat and 
conditions are available.'' However, we believe that even though 
prohibitions on direct harvest and possession of Atlantic sturgeon have 
been in place for years, their life history characteristics, small 
population sizes, and the continued threats associated with bycatch and 
habitat modification are hampering the recovery of Atlantic sturgeon.
    Comment 11: Peer reviewer 3 questioned why the use of samples from 
YOY and mature adult Atlantic sturgeon in the genetic analysis by 
Wirgin and King (2006) ensured that the samples came from fish 
originating in the sampled river system. The reviewer stated this 
implies that intermediate size fish stray more than adults. The 
reviewer also asked if the adults sampled were running ripe adults.
    Response: Whether all of the adults utilized in the study were 
running ripe (i.e., were making a spawning run) is unclear. However, 
adults generally only enter freshwater to spawn and the vast majority 
of Atlantic sturgeon spawn in their natal river (with estimates of less 
than 2 individuals per generation spawning outside their natal system). 
Therefore, the use of genetic samples in this study from adults 
captured in the freshwater portion of a river would indicate that the 
fish originated from that river and had returned to spawn. Similarly, 
Atlantic sturgeon spend the first year of their life in their natal 
river. Therefore, using genetic samples from YOY in a river system 
ensures that the fish originated in that river. Subadult (fish older 
than 1 to 2 years old) Atlantic sturgeon, as well as non-spawning 
adults, are known to make extensive coastal migrations. Subadults may 
use multiple estuarine or riverine areas for refuge, foraging, and 
nursery habitat, while non-spawning adults make extensive marine 
migrations. These life stages were excluded from the study because the 
river of origin cannot be determined from the location the fish are 
captured.
    Comment 12: Peer reviewer 3 noted that 88 percent average accuracy 
in determining a sturgeon's natal river of origin was high and 
questioned whether the 94 percent average accuracy in assigning a 
sturgeon to one of the 5 DPSs was significantly better. The reviewer 
asked if the variance around the 88 and 94 percent figures is known. 
The proposed listing rule stated that the loss of either the Carolina 
or the South Atlantic DPS would constitute an important loss of genetic 
diversity for the Atlantic sturgeon. The reviewer commented that 
additional context on

[[Page 5924]]

the amount of genetic diversity within river populations, among river 
populations within a DPS, and between the 5 DPSs would better support 
that the loss of a DPS would represent a significant loss of diversity.
    Response: The overall accuracy in assigning an Atlantic sturgeon to 
its natal river ranged from 60 to 94.8 percent (60 to 91.7 percent for 
southeastern rivers), while the overall accuracy in identifying a 
sturgeon to one of the 5 DPSs ranged between 88.1 and 95.9 percent 
(91.7 to 95.9 percent for the two southeastern DPSs). The peer 
reviewer's point is well-taken that, while there is higher accuracy in 
identifying a sturgeon to its DPS because of clearer genetic 
differences between the DPSs, the accuracy in identifying a sturgeon to 
its natal river is also quite high. We also agree with the peer 
reviewer that the broader context of the amount of genetic diversity 
exhibited by Atlantic sturgeon, within a DPS as well as among DPSs, 
provides additional support for our conclusion that the loss of a DPS 
would constitute a significant loss of genetic diversity. The high 
accuracy (60 to 92 percent) in utilizing genetic differences to assign 
Atlantic sturgeon in the Southeast to their natal rivers indicates that 
there is a significant amount of genetic diversity among rivers within 
a DPS, as well as between the two Southeast DPSs. Grunwald et al. 
(2008) reports that southern Atlantic sturgeon river populations have 
high diversity and many low frequency (and sometimes private) 
haplotypes. The information from Grunwald et al. (2008) indicates that 
each river population within a DPS makes unique contributions to the 
genetic diversity of the DPS as a whole and lends greater support to 
our determination that the loss of a DPS represents a significant loss 
of genetic diversity.
    Comment 13: Peer reviewer 3 asked if the statement in the proposed 
listing rule that ``with the exception of the Waccamaw River 
population, all river populations sampled within each population 
segment along the entire East Coast were geographically adjacent'' was 
intended to mean that, with one exception, the genetic results are 
consistent with geography. In reference to the statement that the 
sample size from the Waccamaw River population was small (21 fish), the 
reviewer asked what the sample size was for the remaining river 
populations utilized in the genetic analysis.
    Response: The peer reviewer interpreted the statement in the 
proposed listing rule correctly. In reference to the genetic sample 
sizes for rivers other than the Waccamaw, they ranged from 35 to 115. 
However, it is also important to note that genetic samples used in the 
analysis for the other river populations were taken from YOY and adult 
Atlantic sturgeon only to ensure that the fish were spawned in the 
river they were captured in. The genetic samples from Atlantic sturgeon 
captured in the Waccamaw River, in addition to being small in number, 
were taken from only juvenile Atlantic sturgeon, as those were the only 
samples available. As stated previously, juveniles may utilize multiple 
systems for foraging and nursery habitat, therefore the fish captured 
in the Waccamaw River and used in the genetic analysis were not 
necessarily spawned in that system. We are revising information in this 
final rule to indicate that the genetic samples from the Waccamaw River 
all came from juvenile Atlantic sturgeon.

Public Comments

Comments on the Delineation of the DPSs

    Comment 14: Multiple comments were received either disagreeing with 
the listing of DPSs or disagreeing with the way populations were 
grouped into DPSs. One commenter stated that DPS is not a scientific 
term and that the DPS policy is arbitrary. The commenter also stated 
that the decision to list five DPSs results from the lack of NMFS' 
scientific ability to support the listing of the species as a whole. 
Several comments were received, some citing Grunwald et al. (2008), 
that all riverine populations of Atlantic sturgeon are genetically 
distinct. Another commenter stated that populations should either be 
evaluated on a drainage-specific basis or as a single unit south of 
Cape Hatteras because current DPS delineations combine high abundance 
rivers with rivers that have low abundance or unknown population 
status, are extirpated, or exist at the margins of the historical 
range. Comments were received that the entire Carolina DPS does not 
warrant listing as a unit and that only populations from river systems 
that would be afforded further protection by an ESA listing should be 
listed. Multiple commenters were concerned that incorrect delineation 
of DPSs could result in negative impacts to Atlantic sturgeon.
    Response: The ESA, as amended in 1978, included in the definition 
of ``species'' ``any distinct population segment of any species of 
vertebrate fish or wildlife which interbreeds when mature.'' On 
February 7, 1996, the USFWS and NMFS adopted a joint policy (61 FR 
4722) regarding the recognition of distinct population segments (DPSs) 
under the ESA. We agree with the commenter that this is not a 
scientific term, which is acknowledged in the policy itself: ``the 
authority to list a `species' as endangered or threatened is thus not 
restricted to species recognized in formal taxonomic terms, but extends 
to subspecies, and for vertebrate taxa, to distinct population segments 
(DPSs)'' and ``the term is not commonly used in scientific discourse, 
although `population' is an important term in a variety of contexts.'' 
The DPS policy is not arbitrary, and has been upheld by numerous courts 
as a rational and permissible interpretation of the statute by the 
Services. The policy formalizes the criteria that must be met in order 
to consider a subset of a species a DPS, and those criteria are based 
on scientific principles. The Services determined that the listing, 
delisting, and reclassification of DPSs of vertebrate species would 
consider the discreteness and significance of the population segment in 
relation to the remainder of the species to which it belongs.
    We did not delineate the DPSs based on population abundance 
information and lumping high and low abundance rivers. We do not agree 
that the best available scientific information supports listing other 
population segments in the Southeast, such as on a drainage-specific 
basis or as a single DPS south of Cape Hatteras. In accordance with the 
DPS policy, we determined that two DPSs of Atlantic sturgeon exist in 
the Southeast based on genetic information that indicates the DPSs as 
delineated constitute cohesive ecological and evolutionary units, on 
each DPS' persistence in unique ecological settings, and on the 
conclusion that the loss of either population segment would result in a 
significant gap in the range of the species as a whole. In the proposed 
rule, we stated that Atlantic sturgeon studies consistently 
demonstrated the species to be genetically diverse and that between 
seven and ten Atlantic sturgeon population groupings can be 
statistically differentiated range-wide (e.g., King et al., 2001; 
Waldman et al., 2002; Wirgin et al., 2002; Wirgin et al., 2005; 
Grunwald et al., 2008).
    Given a number of key differences among the studies (e.g., the 
analytical and/or statistical methods used, the number of rivers 
sampled, and whether samples from subadults were included), it is not 
unexpected that each reached a somewhat different conclusion. In the 
proposed listing rule, we specifically evaluated and discussed the 
information

[[Page 5925]]

presented by Grunwald et al. (2008) and concluded that, though they 
used additional samples, some from fish in the size range (less than 
130 cm) excluded in the analysis we relied on because they were smaller 
than fish considered to be mature adults, the results of the genetic 
analyses in Grunwald et al. (2008) and in the proposed listing were 
qualitatively the same and did not invalidate our DPS structure. We 
agree that Atlantic sturgeon from different riverine spawning 
populations can be distinguished genetically. However, genetic 
distances and statistical analyses (bootstrap values and assignment 
test values) used to investigate significant relationships among, and 
differences between, Atlantic sturgeon river populations, formed the 
basis of our judgment that the DPSs as proposed constitute cohesive 
ecological and evolutionary units that are appropriate for listing 
under the ESA and the DPS policy. In our judgment, the groupings of 
river populations into the DPSs as proposed, incorporates likely 
patterns of Atlantic sturgeon dispersal between drainages.
    We believe all river populations within the DPSs will be afforded 
greater protection by an ESA listing, and listing the DPSs as proposed 
will not result in negative impacts to Atlantic sturgeon. Any action 
funded, authorized, or undertaken by a Federal agency that may affect 
Atlantic sturgeon from either DPS would require consultation with NMFS 
under section 7 of the ESA. Those analyses will focus initially on the 
impact of an action on the spawning population(s) to which affected 
sturgeon belong and then consider the significance of those impacts to 
the DPS(s).
    Comment 15: Several commenters said use of the genetic data that 
are available for the designation of DPSs may be unreliable due to 
limited sample sizes, spatial, temporal, and ontogenetic differences in 
collection, and lack of samples from all river systems. Commenters also 
said our review of the literature was based on techniques used rather 
than the samples used to derive the conclusions. A commenter stated 
(citing Grunwald et al., 2008) that genetic analyses should have been 
restricted to samples from spawning adults. The commenter cited several 
studies (Grunwald et al., 2008; Wirgin and King, 2006; Wirgin et al., 
2005; Wirgin et al., 2000) as indicating that the north-to-south 
clustering of Atlantic sturgeon river populations into DPSs is not 
valid. The commenter believed NMFS relied on genetic studies to say 
that there are genetic differences among populations but then ignored 
the actual results of the studies. The commenter stated that the Wirgin 
and King data were not peer reviewed and should be given less 
consideration. The commenter also stated that genetic information needs 
to be integrated with ecological and behavioral data in order to draw 
appropriate conclusions. Commenters stated that more data are needed to 
list DPSs and that although the peer reviewed studies have described a 
high degree of genetic separation with good classification success, 
there are problems when the papers are reviewed and considered for 
management. Several commenters noted that genetic samples for adult 
sturgeon will be collected in upcoming years through federally funded 
projects along the Atlantic Coast.
    Response: We agree with commenters that sample sizes, spatial, 
temporal, and ontogenetic differences in collection, and lack of 
samples from all river systems create uncertainty in the Atlantic 
sturgeon genetic data. However, in our judgment the available data show 
genetic separation of the Carolina and South Atlantic DPSs from 
northern populations and from each other. Results showed 92 and 96 
percent accuracy in correctly classifying a sturgeon from four sampled 
river populations (the Albemarle Sound, Savannah, Ogeechee, and 
Altamaha River populations) to two groupings of river populations 
(Albemarle Sound and Savannah/Ogeechee/Altamaha Rivers). Contrary to 
the commenters' assertion, in reviewing the literature and evaluating 
the available genetics data in our consideration of DPSs we looked at 
both technique and the samples used. As stated in Grunwald et al. 
(2008), due to the potential for subadult and adult Atlantic sturgeon 
to undertake extensive migration between systems, specimens certain to 
be spawned within a system (and candidates for use in genetic studies 
of spawning populations) include spawning adults or juveniles less than 
two-years-of-age. When possible, the genetic analyses we relied on in 
the 2007 status review report and in the proposed listing rule limited 
the samples utilized to those collected from spawning adults and YOY, 
which is consistent with (and more restrictive than) what Grunwald et 
al (2008) described. Where genetic samples from adult and YOY were 
missing, we reported the results of other analyses utilizing juvenile 
Atlantic sturgeon and clarified this in the proposed listing rule.
    The commenter presented a comparison of river groupings (UPGMA 
trees) derived from genetic cluster analyses from the cited studies and 
asserted that the various groupings conflicted with the DPS structure 
proposed in the listing, stating that a north-to-south clustering of 
river populations is not valid. However, there is no difference in the 
river groupings resulting from the genetic analyses presented in 
Grunwald et al. (2008; Figure 3) and the river groupings resulting from 
genetic analyses presented in the 2007 status review report (Wirgin and 
King, 2006; Figure 16) for the southern populations. The river 
groupings presented in Wirgin et al. (2000) differ from our results, 
likely due to the inclusion of samples from subadults which may have 
originated from a system other than where they were collected. Wirgin 
et al. (2000) did find a pronounced latitudinal cline in the number of 
composite mtDNA haplotypes and in haplotypic diversity, which increased 
from north to south. The researchers ascribed the greater genetic 
diversity within and among southern populations to the persistence of 
these populations through the Pleistocene and to the faster mutation 
rates associated with their shorter generation times. The genetic 
results referred to by the commenter in Wirgin et al. (2005) were for 
shortnose sturgeon, not Atlantic sturgeon.
    While the genetic analysis by Wirgin and King presented in the 2007 
status review report was not previously published, it was peer reviewed 
as part of the status review and as part of the proposed rule. The 
status review report was peer reviewed by six experts from academia, 
and the proposed listing rule was peer reviewed by three experts, two 
from academia (including an Atlantic sturgeon genetics expert) and one 
from a Federal resource agency.
    We agree with the comment that genetic information needs to be 
integrated with ecological and behavioral data in order to draw 
appropriate conclusions. We relied on behavioral information (i.e., the 
migratory nature of subadults and non-spawning adults) to determine the 
appropriate life stages (i.e., YOY and spawning adults) to use for the 
genetic analysis. We also used behavioral and ecological information in 
conducting our DPS analysis per the Services' joint DPS policy. We 
considered the species' behavior in that the majority of Atlantic 
sturgeon return to their natal rivers to spawn. We also considered 
ecological issues, such as the fact that the DPSs persist in unique 
ecological settings and that the loss of a DPS would represent a 
significant gap in the range of the species.

[[Page 5926]]

    Additional genetic analyses will improve our understanding of 
Atlantic sturgeon and their population structure, and we eagerly await 
the results of upcoming and ongoing genetic analyses, some of which we 
are funding through our Species Recovery Grant Program under section 6 
of the ESA. However, we believe that the currently available data 
support the discreteness and significance of the Carolina and South 
Atlantic DPSs. Because we have integrated the genetic data with other 
sources of Atlantic sturgeon information, such as the behavioral and 
ecological information noted above, we do not believe listing DPSs will 
create management problems.
    Comment 16: One commenter disagreed that the DPSs persist in unique 
ecological settings, citing a study by the Institute for Ocean 
Conservation (2010) that Atlantic sturgeon tagged in the Hudson 
traveled from Nova Scotia to Georgia. The commenter also disagreed that 
the loss of a DPS would result in the loss of important genetic 
diversity, citing Quattro et al. (2002) that dispersal is sufficient to 
prevent deep divergence over long evolutionary scales and Peterson et 
al. (2008) that Atlantic sturgeon are resilient to genetic bottlenecks.
    Response: The proposed listing rule states multiple times that 
Atlantic sturgeon mix extensively in the marine environment, which is 
consistent with the citation provided by the commenter. However, we 
disagree with the commenter that the Carolina and South Atlantic DPSs 
do not persist in unique ecological settings. The vast majority of 
Atlantic sturgeon return to their natal river to spawn, and the 
spawning habitat of each DPS is found in a separate and distinct 
ecoregion as identified by The Nature Conservancy (TNC) based on the 
habitat, climate, geology, and physiographic differences for 
terrestrial and marine ecosystems throughout the range of the Atlantic 
sturgeon.. The unique ecological characteristics of the ecoregions the 
Carolina and South Atlantic DPSs originate from are described in detail 
in the proposed listing rule.
    We disagree with the comment that the loss of a DPS would not 
result in the loss of important genetic diversity. Grunwald et al. 
(2008) note that, while northern populations of Atlantic sturgeon have 
low genetic diversity, southern populations exhibit high genetic 
diversity with many low frequency haplotypes. The loss of genetic 
diversity associated with the loss of either the Carolina or South 
Atlantic DPS would reduce the ability of Atlantic sturgeon as a 
subspecies to adapt to new selective pressures, such as climate change 
or shifts in available resources. We also disagree with the commenter's 
assertion that Peterson et al. (2008) supports a conclusion that 
Atlantic sturgeon populations are resilient to bottlenecks. Peterson et 
al. (2008) reported ``pronounced cropping'' of genetic diversity in the 
Altamaha River Atlantic sturgeon population. The researchers expressed 
surprise over this result ``given the resiliency to genetic bottlenecks 
previously reported in other studies of remnant Atlantic and shortnose 
sturgeon populations (Quattro et al., 2002; Waldman et al., 2002).'' 
Grunwald et al. (2008) also stated that ``current populations from the 
Hudson River northward represent step-wise recolonizations with a 
bottlenecking effect.''
    Comment 17: One commenter stated that the proposed listing rule 
suggested the number of Atlantic sturgeon spawning in locations other 
than their natal rivers (``outmigrants'') is not dependent on 
population size. The commenter believed the rate of outmigration is 
much higher than stated and should be presented as a percentage, but 
that some level of mixing should be considered. Another commenter 
stated that recolonization of a basin would be slow regardless of 
whether adjacent populations are low or robust due to the low rate of 
outmigration and genetic transfer between basins. The commenter noted 
that there are greater distances between rivers within the Carolina DPS 
than between the Carolina and South Atlantic DPSs. This commenter 
stated that if outmigration is limited and most likely occurs between 
adjacent populations, this refutes the DPS structure.
    Response: The number of Atlantic sturgeon outmigrants (less than 2 
per generation) included in the proposed listing rule was estimated 
from genetic analyses by the studies we cited. We did not relate 
outmigration of Atlantic sturgeon to population size in the proposed 
listing rule, and we do not have available data to present outmigration 
as a percentage of population size; however, we agree with the 
commenter that rates of outmigration may increase with increasing 
population size. We agree that recolonization of a system from adjacent 
populations would be slow, which is consistent with statements in the 
2007 status review report (page 97) and in the proposed listing rule 
(page 61912). The distances separating rivers within and between the 
Carolina and South Atlantic DPSs do not account for the extremely low 
level of outmigration in Atlantic sturgeon spawning populations. Adult 
(and subadult) Atlantic sturgeon are known to make extensive movements 
between systems along the East Coast range of the species. Though the 
exact cues are not known, it is a life history characteristic of 
Atlantic sturgeon that the vast majority spawn in their natal river 
system. The low level of outmigration does not refute the DPS 
structure; as we stated above, the groupings of river populations into 
the DPSs as proposed, incorporates patterns of Atlantic sturgeon 
dispersal among drainages. The evidence supporting the structure of the 
Carolina and South Atlantic DPSs is presented in the proposed listing 
rule and in our responses to comments 14-16 above.
    Comment 18: Several commenters stated that there were no specific 
geographic boundaries or coordinates listed to delineate the five DPSs 
and believed this should be addressed in the final rule, since 
conservation and other management measures will likely be implemented 
based on the delineation of the DPSs. The commenters also had concerns 
that the rivers and tributaries listed in each DPS are not all-
inclusive and could potentially create loopholes for management and 
conservation measures. Another commenter stated that the extensive 
mixing of Atlantic sturgeon in the marine environment will make 
conservation and management of the DPSs difficult to impossible.
    Response: We do not believe additional geographic boundaries or 
coordinates delineating the DPSs are necessary or that there are any 
loopholes for management or conservation. As stated in the proposed 
rule text, each of the DPSs is defined to include fish that spawn in 
the range of watersheds encompassed by the DPS. Our intent was that all 
fish spawned in such watersheds would also be included in the listing 
throughout their life cycles. Thus, fish spawned in one river, but 
using an adjacent river as nursery or subadult feeding habitat, are 
included in the listing. We have refined the text descriptions of the 
Carolina and South Atlantic DPSs in the final listing rule to more 
clearly reflect this issue. The modifications to the text clarify the 
riverine ranges of the DPSs but do not change the populations making up 
each of the Southeast DPSs.
    As noted by commenters, Atlantic sturgeon from each riverine 
watershed and DPS may be found in multiple riverine, estuarine, and 
marine environments at various life stages. We agree that the extensive 
mixing of Atlantic sturgeon will make conservation and management of 
the

[[Page 5927]]

DPSs challenging. As we stated in the proposed listing rule, this 
extensive mixing of Atlantic sturgeon in the marine environment, as 
well as in multiple riverine and estuarine systems, can expose Atlantic 
sturgeon of a given DPS to a variety of threats at various life stages 
and in multiple locations. We discuss management challenges and 
potential strategies for dealing with them in the sections of the 
proposed and final listing rules entitled ``Identifying the DPS(s) 
Potentially Affected by an Action During Section 7 Consultation.''

Species Data and Information Supplied by Commenters

    Comment 19: Commenters from North and South Carolina state agencies 
and other commenters supplied data and information for the Carolina 
DPS. One comment stated that there was an observed increase in 
abundance of Atlantic sturgeon in Albemarle Sound between 2005 and 
2008. The commenter also stated there was a slight increase in 
abundance of juveniles and subadults in Pamlico Sound, while river 
surveys showed a slight decrease in abundance. Commenters also included 
data from late 2010 indicating there is a fall spawning run in the 
Roanoke River. Based on anecdotal angler reports from North Carolina, 
some commenters asserted that Atlantic sturgeon are persisting, though 
there has been little improvement in the size and age distributions of 
the Carolina DPS relative to historical levels. They also noted 
sampling efforts directed toward sturgeon have been sparse and limit 
ability to accurately characterize existing populations. Comments from 
South Carolina noted that Atlantic sturgeon were captured in most nets 
set in Winyah Bay from April to July in 2007 to 2009, including sites 
far upriver, and that sonar sampling indicated several hundred Atlantic 
sturgeon at the confluence of the Sampit River and Winyah Bay in 2009. 
A commenter stated that fishery surveys conducted as a requirement of 
the Federal Energy Regulatory Commission (FERC) license for the Yadkin-
Pee Dee Hydroelectric Project resulted in the capture of a running ripe 
male in the Pee Dee River in October of 2003, indicating spawning 
activity. Large fish believed to be Atlantic sturgeon were sighted 
during electrofishing from 2002 to 2003. The commenter stated that this 
and other research (Collins and Smith, 1997; Collins et al., 2003; 
Gibbons and Post, 2009) suggest that there may be a sizeable Atlantic 
sturgeon population present in the Pee Dee River and the Winyah Bay 
system. State agency comments noted that there have been few encounters 
with Atlantic sturgeon in the Santee River and there are anecdotal 
reports of breaching sturgeon in the Cooper River.
    Response: We reviewed the specific information supplied for 
Atlantic sturgeon from the Carolina DPS and have added it to the 
``Distribution and Abundance'' section of the final listing rule; 
however, this information does not require a change in our listing 
determination. The Independent Gill Net Survey (IGNS) data supplied by 
the North Carolina Department of Environment and Natural Resources 
(NCDENR) does show an increase in CPUE between 2005 and 2008 in 
Albemarle Sound. Based on Table 1 and Figure 2 included in NCDENR's 
comments, the CPUE in 2005 was 0.012, and increased in each successive 
year until 2008, when it reached 0.031. However, the data supplied by 
NCDENR for Albemarle Sound dates back to 1990 and continues to 2009. 
The 1990-2009 CPUE data as a whole shows a great deal of fluctuation, 
with no increasing trend, but rather periodic increases and decreases. 
In 2009, the CPUE dropped back down to 0.015, the level recorded in 
2006. While 2008 was the highest CPUE observed since 2002, the CPUEs 
recorded for 1990 (0.081), as well as for 2000 and 2001 (0.032 both 
years), were actually the highest recorded in the 1990-2009 dataset for 
Albemarle Sound provided by NCDENR. The lowest CPUE levels recorded in 
the 1990s (0.005 to 0.010 in 1992, 1993, 1995, and 1996) were observed 
again in 2002, 2003, and 2004 (0.005 to 0.007). The commenter stated 
that there has been an increase in juveniles and subadults in Pamlico 
Sound since 2001. Based on IGNS data provided by NCDENR (Table 4, 
Figure 8), the CPUE for Pamlico Sound was 0 in 2001, and greater than 0 
for 2002 through 2009. While all CPUEs for Pamlico Sound are greater 
than that recorded in 2001, there is no apparent increasing trend in 
the data. While the highest CPUEs were observed between 2004 and 2007 
(0.016 to 0.066), the highest being recorded in 2005, the CPUE has 
decreased since 2005. The level observed in 2009 (0.003), the lowest 
CPUE in this dataset, was also observed in 2002 and 2003. Similarly, 
the river surveys of the Pamlico, Pungo, and Neuse Rivers showed a peak 
CPUE in 2005, with very low numbers observed in the other years within 
the survey period of 2000 to 2009. The information provided by the 
commenter on spawning in the Roanoke River supports information 
included in the proposed listing rule. While the Roanoke was determined 
to be an active spawning river within the Carolina DPS in the proposed 
listing rule, information supporting that a fall spawning run occurs 
there will greatly aid in the conservation and management of the 
species. We agree with the commenters' statement that Atlantic sturgeon 
are persisting, though there has been little improvement in the size 
and age distributions of the Carolina DPS relative to historical 
levels. The failure of Atlantic sturgeon populations to rebound, even 
with the moratorium on harvest and possession and other efforts to 
recover the species, is the primary reason we are proposing to list the 
species as endangered. In 1901, the Atlantic sturgeon fishery collapsed 
when less than 10 percent of the U.S. 1890 peak landings were reported. 
The landings continued to decline coastwide, reaching about 5 percent 
of the peak in 1920. Coastwide landings remained between 1 and 5 
percent of the 1890 peak levels until the Atlantic sturgeon fishery was 
closed by ASMFC in 1998. Atlantic sturgeon populations, estimated to be 
1 to 6 percent of their historical levels, have remained relatively 
unchanged since the initial collapse caused by the Atlantic sturgeon 
fishery of the late 19th century. We agree that sampling efforts need 
to be increased to effectively characterize populations and we are 
making efforts to see that it happens.
    The South Carolina Department of Natural Resources provided 
information (SCDNR) for Winyah Bay that Atlantic sturgeon were 
encountered in most nets set from April to July (2007 to 2009) and that 
a researcher using sonar observed several hundred Atlantic sturgeon in 
Winyah Bay near the confluence of the Sampit River in 2009. We 
contacted Dr. Hightower, the researcher conducting the sonar work in 
Winyah Bay, to get further information on his observations. Dr. 
Hightower provided additional information via email on July 7, 2011, 
that he and fellow researchers were conducting ``pilot trials without a 
specific survey protocol, so we have not tried to generate density 
estimates. One of the issues that must be resolved before using the 
side-scan files in a quantitative way is to estimate the probability of 
identifying (detecting) a sturgeon, given that it is present in the 
area surveyed by the side-scan sonar. We are still working on that 
question, but results to date suggest that the detection probability 
depends on fish size, position in the water column, and possibly 
orientation relative to the sonar. Thus, we could come up with a 
density estimate for fish above some

[[Page 5928]]

size threshold, but we would not be able to reliably estimate how many 
of those were Atlantic sturgeon. Some of the large fish on those images 
are clearly Atlantic sturgeon and many others are likely to be 
sturgeon. The statement that several hundred were in that area is a 
reasonable description of what the side-scan data show but we are not 
at the point of being able to estimate the density with confidence.'' 
Dr. Hightower also remarked that ``we have done pilot survey work in 
the Roanoke, Neuse, Cape Fear, and Pee Dee river systems. The side-scan 
images from the Pee Dee (Winyah Bay) suggest markedly higher densities 
than in the other rivers.'' If all fish detected by Dr. Hightower were 
Atlantic sturgeon, the possibility that there were hundreds in Winyah 
Bay does not conflict with our estimate of less than 300 spawning 
adults per year in each spawning river. The sonar study was conducted 
in August 2009. Due to the time of year and location, it is unlikely 
this was a spawning aggregation and there is no way of knowing what age 
classes were present. It is possible that some of these fish were 
juvenile Atlantic sturgeon, which are known to utilize multiple 
riverine and estuarine systems other than their natal system. The 
information provided regarding the surveys conducted on the Yadkin-Pee 
Dee as a requirement of a FERC license is not new information, as it 
was included in the proposed listing rule. The information on the 
Santee-Cooper system is noted, and it is consistent with the proposed 
listing rule. The information for Atlantic sturgeon in the Carolina DPS 
presented by commenters, when considered as part of our listing 
determination, does not change our determination that the Carolina DPS 
warrants listing as endangered. In our judgment, none of the river 
populations in the DPS are large or stable enough to provide with any 
level of certainty for the continued existence of the DPS in the face 
of threats currently acting on the species. In our judgment, the 
Carolina and South Atlantic DPSs require multiple stable spawning 
populations.
    Comment 20: Commenters from state agencies supplied data and 
information for the South Atlantic DPS. South Carolina Department of 
Natural Resources (SCDNR) supplied data from the Edisto, where 3,661 
Atlantic sturgeon were captured between 1994 and the present; their 
population models estimate between 20,000 to 70,000 sturgeon. Between 
1997 and 1999, SCDNR captured 118 adults in the Edisto River during 
spring and fall spawning runs, but netting ceased once that number was 
reached. They believed if they had continued netting activities, they 
would have captured more than 300 spawning adults. SCDNR also noted 
approximately 20 adults were captured in one to two months during 
surveys targeting other species. In 2010, four adults tagged in the 
1990's as age 0+ were recaptured, which they believe indicates the 
moratorium is having the desired effect of allowing fish to recruit to 
the broodstock population. In the Savannah River, the SCDNR captured 
369 Atlantic sturgeon between 1997 and 2010. SCDNR commented that there 
is not enough data to support the contention that the Altamaha has the 
largest population in the southeast and that other rivers have less 
than 300 spawning adults per year. The Georgia Department of Natural 
Resources (GADNR) commented that there is new information on the 
potential increase of Atlantic sturgeon in the Altamaha, and 
additionally, the Satilla River has been found to contain a substantial 
number of fish, where few to none were thought to exist in the past. 
Citing Peterson et al. (2008), GADNR stated the Altamaha may be 
recovering, though absence of adults older than age 17 suggests the 
effects of overfishing are still evident. According to Georgia's recent 
compliance reports to the ASMFC, the 2009 and 2010 estimates of age-1 
Atlantic sturgeon in the Altamaha River were two and five times the 
estimates from the 2004-2008 period, respectively. In the most recent 
compliance report to ASMFC, University of Georgia (UGA) researchers 
collected more than 200 Atlantic sturgeon in the Satilla River in less 
than 2 years of sampling. They concluded that the presence of juvenile 
fish measuring less than 50 cm indicates this is likely a self-
sustaining, spawning population.
    Response: We reviewed the specific information supplied by the 
states for Atlantic sturgeon from the South Atlantic DPS and have added 
it to the ``Distribution and Abundance'' section of the final listing 
rule. However, the additional information does not require a change in 
our listing determination. SCDNR stated that in the 16-year period 
since 1994, they captured 3,661 juvenile (one- to three-year-old) 
Atlantic sturgeon in the Edisto River. This updates information we 
included in the proposed listing rule that over 3,000 juvenile Atlantic 
sturgeon were collected in the ACE Basin between 1994 and 2001, 
including 1,331 YOY. SCDNR used Lincoln-Peterson and Schnabel models to 
derive Atlantic sturgeon population estimates from these data, which 
resulted in estimates of 70,000 and 20,000 Atlantic sturgeon in the 
Edisto River, respectively. SCDNR commented that the models' results 
suggest increasing trends in abundance. Both models rely on mark-
recapture data and assume a closed population (there are no births, 
deaths, or immigration/emigration between the initial capture and the 
recapture period) and that all individuals have an equal chance of 
being captured (Nichols, 1992; Lindeman, 1990; Chao, 1987). We note 
that there is great uncertainty in the population estimates resulting 
from the two models, as evident in the great disparity between the two 
results (20,000 versus 70,000). The reliability of the population 
models used depends on the validity of the assumptions of those models. 
The primary assumption of these two models, that each individual has an 
equal probability of capture, is likely unattainable in natural 
populations (Chao, 1987; Carothers, 1973). The assumption of a closed 
population is probably violated for any estimate calculated using the 
Schnabel or Lincoln-Petersen method on data collected over several 
weeks or months, and it is surely violated when data from one or more 
active seasons are used (Lindeman, 1990). SCDNR indicated they are 
currently completing an open system model (which is based on survival 
probabilities, as well as capture probabilities) to better assess the 
Atlantic sturgeon population in the Edisto River. Because the closed 
system models used by SCDNR provide estimates of juvenile abundance 
only and do not account for other population dynamics (birth, 
mortality, immigration/emigration), the estimates provided by the 
models likely represent an overestimate of juvenile abundance, do not 
provide an estimate of how many juveniles likely mature into spawning 
adults, and do not provide any information that undermines our use of 
the estimate of less than 300 spawning adults per year in the system. 
Atlantic sturgeon do not reproduce every year; females reproduce on the 
order of once every 2 to 5 years, males every 1 to 5 years. Small 
numbers of fish spawning can reduce the likelihood of successful 
spawning and the amount of genetic variation introduced into the next 
generation.
    SCDNR commented that we do not have enough data to support the 
belief that the Altamaha River has the largest spawning population in 
the Southeast and that all other rivers have less than that. However, 
we relied on the best available information in arriving at the

[[Page 5929]]

estimate, and the information supplied by commenters, including the 
data provided by SCDNR, actually supports the estimate. The Altamaha is 
believed to have the largest Atlantic sturgeon spawning population in 
the Southeast, based on the absence of dams impeding access to 
appropriate spawning habitat, the lack of heavy development in the 
watershed, and relatively good water quality. The information supplied 
by GADNR showed an increase in age-1 Atlantic sturgeon from the 
Altamaha River in 2009 and 2010 over 2004 to 2008 levels. This was also 
reported by peer reviewer 2 and discussed in our response to comment 2. 
The information provided for the Satilla River is consistent with 
information in the proposed listing rule that the Satilla River has a 
resident spawning population of Atlantic sturgeon. The information for 
Atlantic sturgeon in the South Atlantic DPS presented by commenters, 
when considered as part of our listing determination, does not change 
our determination that the South Atlantic DPS warrants listing as 
endangered. In our judgment all river populations in the DPS are too 
small to be stable and self-sustaining.
    Comment 21: In response to our request in the proposed listing rule 
for information on the mixing of Atlantic sturgeon populations, the 
petitioner cited Erickson et al. (2011) stating that out of 15 Atlantic 
sturgeon tagged in the Hudson River, one was relocated in Georgia, 
which supports extensive, long range mixing of sturgeon. The petitioner 
also cited Laney et al. (2007) that Atlantic sturgeon from the Hudson 
River represent approximately 44 percent of those in North Carolina 
overwintering habitat.
    Response: We appreciate the information provided by the petitioner. 
These studies support our assertion in the proposed listing rule that 
extensive mixing of the DPSs outside their natal rivers occurs during 
non-spawning phases. We are continuing to seek information on the 
degree of mixing of the different river populations, including through 
our funding of the project to determine seasonal and spawning migration 
patterns and incidences of inter-basin transfer for adult Atlantic (and 
shortnose) sturgeon in southeastern rivers in North Carolina, South 
Carolina, and Georgia.

Comments on Abundance and Trends

    Comment 22: Many comments were received stating that the abundance 
estimate of 300 spawning adults per year is not supported by data. Many 
of these comments stated that the proposed listing rule is not valid 
without stock assessments of Atlantic sturgeon populations. One 
commenter stated that the estimate of 300 spawning adults per year is 
misleading in regards to total population abundance since Atlantic 
sturgeon do not spawn every year and the total population abundance is 
likely much higher. Another commenter, citing Schueller and Peterson 
(2010), stated that we should consider juveniles rather than spawning 
adults. A comment was received that the statements on page 61920 of the 
proposed listing rule about spawning populations being less than the 
500 recommended by Thompson (1991) conflict with the statement that 
total population abundances for the Carolina and South Atlantic DPSs 
are not available. Additionally, a comment was received that based on 
modeling, populations in the Winyah Bay system and the ACE Basin have 
more individuals than Thompson (1991) recommended as minimum viable 
population sizes for short-term and long-term population fitness.
    Response: In response to comments on lack of stock assessments 
being a bar to listing determinations, we note that section 4(b)(1)(A) 
of the ESA provides that the Secretary shall make required listing 
determinations solely on the basis of the best scientific and 
commercial data available to him at the time of the determination, 
after conducting a review of the status of the species and taking into 
account efforts to protect the species. Even if a formal stock 
assessment of the species has not been conducted, if the best available 
information indicates the species warrants listing, as it does for 
Atlantic sturgeon, then we are required to list the species. Lack of 
formal stock assessments is not an unusual circumstance for species 
that have drastically declined, are at very low population numbers, or 
whose ranges have constricted, such that they are the subject of 
petitions to list them as threatened or endangered. Though we do not 
have stock assessments, we believe the current body of information on 
the declines of Atlantic sturgeon, the failure of their population 
numbers to rebound despite harvest prohibitions, the small relative 
magnitude of riverine spawning populations, and the ongoing impacts and 
threats from bycatch and habitat modification, warrant listing the 
Carolina and South Atlantic DPSs as endangered.
    In the Southeast, the Altamaha is the only river where abundance 
has been directly surveyed. While traditional stock assessments from 
other Southeast rivers in the species' U.S. range are not available, we 
nevertheless relied on the best available data to produce a relative 
estimate of the number of Atlantic sturgeon in the remaining spawning 
populations. Based on a comprehensive review of the available data, the 
literature, and information provided by local, state, and Federal 
fishery management personnel (both documented in the 2007 status review 
report and in comments received on this rule), it is our judgment that 
the Altamaha River has the largest Atlantic sturgeon spawning 
population in the Southeast. The larger size of this population 
relative to the other river populations in the Southeast is likely due 
to the absence of dams that impede access to appropriate spawning 
habitat, the lack of heavy development in the watershed, and relatively 
good water quality, as Atlantic sturgeon populations in the other 
rivers in the Southeast have been affected by one or more of these 
factors. Though abundance estimates from stock assessments are not 
available for the other river populations, because the Altamaha 
spawning population is the largest, we believe it is reliable to 
estimate the size of other spawning populations in the Southeast Region 
as no more than 300 adults spawning per year. Further, data supplied by 
managers and researchers (and discussed in the previous section of 
responses to comments), support an estimate of less than 300 spawning 
adults per year in the other Southeast rivers.
    The use of annually spawning adults is not intended to be 
misleading. We agree with the commenter that total riverine population 
numbers of Atlantic sturgeon are higher than the number of annually 
spawning adults. However, the only quantitative abundance estimate 
available to us when the proposed rule published was the number of 
annually spawning adults in the Altamaha River, not total population 
numbers or the total number of juveniles, as suggested by another 
commenter citing Schueller and Peterson (2010).
    Schueller and Peterson (2010) stated that quantified methods of 
assessing sturgeon recruitment are essential for evaluating population 
trends, but that early life stages of most sturgeon species are 
notoriously difficult to sample, and their study on the Altamaha River 
provides the first quantified recruitment data describing a juvenile 
Atlantic sturgeon population in a southern river. They conducted their 
research during the summers of 2004 to 2007 and estimated that juvenile 
abundance ranges from 1,072 to 2,033 individuals in the Altamaha River, 
with age-1 and age-2 individuals comprising greater

[[Page 5930]]

than 87 percent of the population. Based on modeling, estimated 
apparent survival and per capita recruitment indicate that the juvenile 
population experiences high annual turnover: Apparent survival rates 
are low (less than 33 percent), and per capita recruitment is high 
(0.82-1.38). However, the authors noted that their mark-recapture 
methods were not capable of providing separate estimates of annual 
survival and out-migration, yet these rates are critical in 
understanding recruitment processes for the species. They noted future 
studies are needed to obtain quantified recruitment data using 
alternative methods, such as biotelemetry and known-fates modeling 
approaches. Schueller and Peterson (2010) concluded that future studies 
of subadult and adult life stages are needed, but quantified assessment 
of river resident juveniles can provide fisheries managers with the 
data necessary for evaluating population trends.
    The statement in the proposed listing rule that spawning 
populations are less than the 500 recommended by Thompson (1991) as a 
minimum viable population size for long-term population fitness does 
not conflict with the statement that total population abundances for 
the Carolina and South Atlantic DPSs are not available. As we stated in 
this response, we do not have direct estimates of total population 
numbers for any of the Southeast spawning populations. Based on data 
from Schueller and Peterson (2006), we were able to present an estimate 
of the number of annually spawning adults in the Altamaha River. 
Although survey/stock assessment data on total population numbers or 
annually spawning adults are not available for the remaining Southeast 
river populations, based on information that the Altamaha is the 
largest population in the Southeast and data from the remaining rivers, 
we estimate in comparison that the other spawning populations have no 
more than 300 spawning adults per year.
    In response to the comment that based on observations and modeling, 
the Winyah Bay system and ACE Basin have more individuals than Thomas 
(1990) recommended as minimum viable population sizes for short-term 
and long-term population fitness, we note that Thomas (1990) offered a 
population size of 5,500 as ``a useful goal,'' but suggested that where 
uncertainty regarding a species' population dynamics, changing 
environmental conditions, and the species' reaction to the changing 
environmental conditions is extreme (as it is for Atlantic sturgeon) 
``we should usually aim for population sizes from several thousand to 
ten thousand.'' Information provided for the Winyah Bay and ACE Basin 
does not provide an estimate of total population size in either system. 
Because annual spawning adults was the only quantitative population 
metric we had for any southern river population at the time of the 
proposed listing, we looked at estimated annual spawning adult 
population sizes in comparison to various viable population sizes 
suggested in the literature. We now have additional information on 
juvenile abundance in the Altamaha River and some preliminary modeling 
of juvenile abundance in the Edisto River; however, this information is 
lacking for most river systems, and the population trends are not 
certain from the data we have. Although the Carolina and South Atlantic 
DPSs, made up of multiple river populations of Atlantic sturgeon, were 
determined to be interbreeding population units, the vast majority of 
Atlantic sturgeon return to their natal rivers to spawn, with fewer 
than two migrants per generation spawning outside their natal system. 
We looked at the number and size of each riverine spawning population 
within each DPS when considering the effects of a small population size 
on the extinction risk for the DPS as a whole. We do not believe that 
information presented by the commenters provides a basis to revise our 
evaluation of the status of the Carolina and South Atlantic DPSs of 
Atlantic sturgeon.
    Comment 23: Several commenters stated that historical commercial 
landings do not accurately reflect abundance and are not a good 
indicator of status. One commenter stated that Secor (2002) should not 
be used as the basis for estimating historical abundances of Atlantic 
sturgeon. The commenter stated that due to the nearshore location of 
the fisheries in the latter part of the 19th century, the data would 
include Atlantic sturgeon from multiple populations and represent a 
gross overestimate of historical abundance. A comment was received that 
population modeling should have been used to analyze the trajectory of 
the species.
    Response: Section 4(b)(1)(A) of the ESA states that the Secretary 
shall make listing determinations solely on the basis of the best 
scientific and commercial data available. Historical abundance data is 
not available. However, we believe that the historical landings data 
and the sharp downward decline observed in landings throughout the 20th 
century are a valid indicator of the declines in abundance experienced 
by Atlantic sturgeon. Secor (2002) represents the best available data 
on the estimated historical abundances of Atlantic sturgeon, as does 
the U.S. Fish Commission data on historical landings, which the Secor 
(2002) publication was based on and which we reviewed ourselves for 
clarification in preparing the making our listing determinations. We 
agree that it is impossible to conclusively determine whether 
historical landings data potentially represents Atlantic sturgeon from 
multiple river systems and multiple DPSs. In the proposed listing rule, 
we reported historical abundances of Atlantic sturgeon from Secor 
(2002) as state-wide estimates of spawning females for North Carolina, 
South Carolina, and Georgia. Though not stated directly in the proposed 
listing rule, this infers that multiple river populations and DPSs are 
represented in these estimates, since each state contains multiple 
river systems, both of the DPSs in the Southeast encompass multiple 
states, and in the case of South Carolina, both DPSs include river 
populations originating in that state. Therefore, our use and 
presentation of the data in the proposed listing rule was appropriate 
and not inconsistent with the commenter's statement. Due to the lack of 
data (e.g., abundance, recruitment, natural mortality, bycatch 
mortality) on Atlantic sturgeon throughout most of the species' range, 
reliable population modeling at the species/DPS level is not possible. 
However, as detailed in the proposed listing rule, we believe that the 
trajectory observed in the commercial landings from the late 19th 
century through the 20th century, combined with information from recent 
and ongoing surveys of Atlantic sturgeon populations and information on 
threats to the species from habitat modification (e.g., dams, dredging, 
water quality and quantity) and bycatch clearly demonstrates that 
Atlantic sturgeon population abundances have shown little improvement 
since their initial declines and continue to face a degree of threat 
that warrants listing the Carolina and South Atlantic DPSs of Atlantic 
sturgeon as endangered.
    Comment 24: A commenter stated that the 1990-2003 increasing trend 
in Atlantic sturgeon abundance in the Cape Fear River should not have 
been discounted in the status review.
    Response: We did not discount information in the proposed listing 
rule on trends in Atlantic sturgeon abundance in the Cape Fear River 
between 1990 and 2003, as reported by Moser et al. (1998) and Williams 
and

[[Page 5931]]

Lankford (2003). We presented different interpretations of the data 
that the researchers noted themselves in their research publications. 
In the proposed listing rule, we stated ``abundance of Atlantic 
sturgeon below Lock and Dam 1 in the Cape Fear River seemed to 
have increased dramatically during the 1990-1997 surveys (Moser et al., 
1998), as the CPUE of Atlantic sturgeon was up to eight times greater 
during 1997 than in the earlier survey years. Since 1997, Atlantic 
sturgeon CPUE doubled between the years of 1997 and 2003 (Williams and 
Lankford, 2003). However, it is unknown whether this is an actual 
population increase reflecting the effects of North Carolina's ban on 
Atlantic sturgeon fishing that began in 1991, or whether the results 
were skewed by one outlier year. There was a large increase observed in 
2002, though the estimates were similar among all other years of the 
1997 to 2003 study.'' The commenter stated that the 2007 status review 
report should not have discounted the increase in sturgeon abundance in 
2002 as an outlier year for the reason that it was a flood year. 
Williams and Lankford (2003) stated that CPUE is used to indicate a 
population size, but if environmental conditions affect the 
susceptibility of fish to being captured in gillnets, then the data may 
show a change in population size when environmental conditions actually 
caused the change in CPUE. Williams and Lankford (2003) further stated 
that, ``although previous years have documented relatively similar 
catch-per-unit-efforts, the summer of 2002 yielded twice the CPUE of 
any season since 1997. This also happens to be the lowest flow 
conditions experienced during this survey. Although catch-per-unit-
effort increased greatly during these low flow conditions, previous 
years with low flow summers did not have the same resulting increases 
in CPUE. Future surveys should investigate river flow and other 
environmental conditions that may impact the Atlantic sturgeon's use of 
the Lower Cape Fear River.'' The researchers acknowledged ambiguity in 
whether these results represent increases in Atlantic sturgeon 
abundance or whether environmental conditions affected CPUE. Therefore, 
the information we presented in the proposed listing rule on trends in 
the Cape Fear River is consistent with what the researchers presented. 
Further, even if the data in the Cape Fear River do represent an actual 
increase in Atlantic sturgeon, data provided by NCDENR during the 
public comment period on the proposed listing rule did not show 
increasing trends in Atlantic sturgeon populations in other North 
Carolina rivers.
    Comment 25: A commenter asked if the historical data on pounds of 
Atlantic sturgeon landed in South Carolina (page 61907 of the proposed 
listing rule) can be converted to CPUE.
    Response: The majority of the landings data for South Carolina 
referred to by the commenter cannot be converted into CPUE. However, 
the data were taken from Smith et al. (1984), which did provide CPUE 
for the time period 1973 to 1982, and provided anecdotal data about the 
level of fishing effort for earlier time periods. The objective of the 
research conducted by Smith et al. (1984) was to obtain baseline 
information on the Atlantic sturgeon fishery in South Carolina. At the 
time their research commenced, South Carolina accounted for 55 percent 
of the total U.S. landings of Atlantic sturgeon, but little information 
on the characteristics of the fishery was available. Figure 2 in Smith 
et al. (1984) shows license data for the Atlantic sturgeon fishery in 
South Carolina. From 1960 to 1982, the number of fishermen licensed for 
sturgeon remained relatively constant, averaging 21 individuals 
(ranging between 15 and 30) per year. Smith et al. (1984) noted that 
fishermen possessing certain other types of fishing licenses (e.g., a 
shrimp fishing license) were permitted to fish for Atlantic sturgeon 
without having a specific sturgeon license. Based on field 
observations, they estimated that there were two to three times the 
number of recorded licensed sturgeon fishermen active in these 
fisheries. No data on the amount of gear fished were available for the 
period of most active exploitation of the fishery (pre 1910), but from 
1925 to 1970, the number of licensed units of fishing gear was also 
relatively constant and averaged 17.8 (ranging between 11 and 26). This 
suggests that landings data are representative of relative abundance, 
since fishing pressure remained constant.
    There was a dramatic increase in fishing effort in the 1970 to 1982 
time period, with the number of licensed nets at record levels for the 
time. The number of licensed nets in 1970 was less than 30, but by 
1982, it was around 140. Smith et al. (1984) calculated CPUE data for 
1973 to 1982 based on reported total landings and number of net 
licenses, as well as field observations and verbal information provided 
by fisherman. They noted several limitations of the license and 
landings data for calculating CPUE: (1) Though individual gear were 
required to be licensed, the license was not based on type or length; 
(2) the license data included gear fished in the northern (Winyah Bay) 
and southern (Edisto, Coosawhatchie, and Combahee Rivers) fisheries, 
whereas the landings data only included fish from the northern 
fisheries; (3) field observations indicated that not all nets were 
licensed, nor landings reported; and, (4) pre-1973 data included 
landings of shortnose sturgeon in addition to Atlantic sturgeon. 
Figures 6 and 7 in Smith et al. (1984) show landings, effort, and CPUE. 
Landings rose from about 20,000 to 42,000 kilograms (kg) between 1973 
and 1982, while the number of licensed nets increased from 36 to 133 
during the same time period, resulting in a slight declining trend in 
CPUE (Figure 6). Observations of fishermen on the Winyah Bay jetties 
between 1978 and 1982 (Figure 7) also showed a decline in CPUE during 
the time period, with Atlantic sturgeon landings declining even with 
effort increasing. Smith et al. (1984) concluded that a definitive 
analysis of the fishery was not possible because of the limitations of 
the data, but they stated that ``fishing effort has substantially 
increased without a concomitant increase in landings'', and though 
``the fate of this fishery in South Carolina is not clear, it appears 
likely that intensive fishing effort will adversely affect local 
populations of these long-lived fish.''

Comments on the 2007 Status Review, the 1998 Status Review, and 
Difference Between the Status Reviews and the Proposed Listing Rule

    Comment 26: Commenters disagreed with NMFS' proposal to list both 
of the DPSs in the Southeast as endangered, when the 2007 status review 
report concluded that the Carolina DPS should be listed as threatened 
and did not make a listing conclusion for the South Atlantic DPS due to 
lack of information to allow a full assessment of subpopulations within 
the DPS. Several of these commenters stated that there was no new 
scientific information presented justifying the proposed listing of the 
Carolina and South Atlantic DPSs differently from the conclusions 
reached in the 2007 status review report. Similar comments were 
received that no new data has been collected, and no changes in the 
level of threats have been documented, since the 1998 status review, 
which concluded that listing was not warranted at that time. One 
commenter said the proposed listing rule does not sufficiently explain 
why the conclusion in the 1998 status review report that the existing 
moratorium on fishing for Atlantic sturgeon and the

[[Page 5932]]

listing of the shortnose sturgeon was adequate to protect Atlantic 
sturgeon is no longer valid.
    Response: Regarding comments about divergence from the 2007 status 
review report's listing conclusions for the Carolina and South Atlantic 
DPSs, see our response to peer reviewer comment 1 above.
    In 1998, NMFS and USFWS (Services) determined that an ESA listing 
of Atlantic sturgeon throughout its range was not warranted at that 
time (63 FR 50187, September 21, 1998). The Services cited eight 
reasons for the negative determination: (1) Evidence that the 
historical range of the species has not been substantially reduced and 
that its current range is not likely to be significantly reduced in the 
foreseeable future; (2) persistence of at least 14 spawning 
populations; (3) the expected efficacy of existing prohibitions on 
harvest and possession in all 15 states comprising the species' U.S. 
range; (4) detailed evaluation of current habitat conditions and 
threats to habitat showing that conditions are adequate to sustain the 
species and are likely to remain so in the foreseeable future; (5) lack 
of substantial information indicating that overutilization for 
commercial, recreational, scientific or educational purposes is 
currently significantly affecting the species; (6) lack of information 
indicating that disease or predation are causing significant losses of 
individuals of the species; (7) existing regulatory mechanisms which 
provide adequate protection and further the conservation of the 
species; and, (8) lack of information indicating that artificial 
propagation is currently posing a threat to the species.
    Section 4(b)(1)(A) of the ESA requires that listing decisions be 
made using the best available scientific and commercial information at 
the time of the decision, after conducting a review of the status of 
the species and considering the conservation efforts of states and 
foreign nations.
    Information provided in the 2007 status review report and the 2010 
proposed listing rule explain why we no longer believe all of the eight 
conclusions in the 1998 status review report are valid, particularly as 
applied to DPSs of Atlantic sturgeon. Specifically: (1) Reductions in 
the historical range of Atlantic sturgeon have occurred, as evidenced 
by extirpations of several spawning populations in both Southeast DPSs 
and limited access to historical river reaches and habitats above dams 
(detailed in the ``Distribution and Abundance'' and ``Conservation 
Status'' sections of the proposed and final listing rules); (2) no 
spawning populations in the DPSs are large or stable enough to provide 
with any level of certainty for the continued existence of the DPS in 
the face of threats currently acting on the species; (3) existing 
prohibitions on harvest and possession of Atlantic sturgeon in all East 
Coast states do not alleviate other significant threats to Atlantic 
sturgeon (i.e., bycatch and habitat destruction/modification, a point 
discussed in further detail in the discussion on those threats); (4) 
habitat destruction and modification (from dams, dredging, degraded 
water quality and quantity, etc.) is a significant threat to Atlantic 
sturgeon river populations and DPSs, as discussed below and in our 
responses to comments 39-45; (5) information on overutilization of 
Atlantic sturgeon as bycatch suggests that this is also a significant 
threat to Atlantic sturgeon populations, as discussed below and in our 
responses to comments 46 and 47; and, (7) existing regulatory 
mechanisms have proven inadequate at controlling the threats to 
Atlantic sturgeon from habitat modification/destruction and bycatch, as 
discussed in our responses to comments 49 and 50. Evidence for these 
conclusions and detailed responses to the comments received on these 
conclusions is presented in the following text.
    Comments stated that no new data has been collected and no changes 
in the level of threats have been documented since the 1998 status 
review. However, studies not available at the time of the 1998 status 
review report on bycatch (discussed here) and habitat quality 
(discussed later in this section) have been reviewed by NMFS as part of 
our current listing determination. The 1998 status review report 
determined that estimated levels of mortality associated with bycatch 
on the Delaware and Hudson Rivers indicated that bycatch was not a 
significant threat to the species survival but could impede recovery, 
and recommended that efforts be made to better quantify data on bycatch 
levels, fishing effort, and river population levels to ensure that 
assumptions made using Hudson and Delaware River information are valid 
for other river populations. Since 1998, the ASMFC (2007) produced a 
bycatch report providing estimates of Atlantic sturgeon bycatch, as did 
Stein et al. (2004), a bycatch report used by the 2007 ASSRT. The 
reports documented mean bycatch mortality rates of 13.8 percent and 22 
percent, respectively. However, the ASMFC (2007) report noted that the 
estimates of bycatch utilized in the analysis are likely to be 
underestimates of true bycatch and mortality levels, since they rely 
only on reported bycatch from the observer program (there is limited 
observer coverage in fisheries potentially capturing Atlantic sturgeon 
in Federal waters from North Carolina to Florida), and delayed 
mortality is not accounted for in their estimates. Further, the 1998 
status review report did not consider the effects of bycatch and 
degraded habitat working in combination on greatly reduced Atlantic 
sturgeon populations, which are at 1 to 6 percent of historical levels.
    In response to the comments that the proposed listing rule does not 
sufficiently explain why the conclusion in the 1998 status review 
report that the existing moratorium on fishing was adequate to protect 
Atlantic sturgeon is no longer valid, at the time of the 1998 
determination, we note that the ASMFC moratorium on retention of 
Atlantic sturgeon had recently gone into effect. Because this 
eliminated directed fishing for Atlantic sturgeon (NMFS followed this 
with a 1999 closure of the EEZ to fishing for Atlantic sturgeon), which 
was considered the primary threat to the continued existence of the 
species at the time, the moratorium factored heavily in the Services' 
decision not to list the species at the time. However, since 
implementation of the moratorium, additional bycatch information (Stein 
et al., 2004; ASMFC, 2007) has become available and indicates that 
Atlantic sturgeon are vulnerable to bycatch in commercial fisheries, 
and that the current rate of bycatch is unsustainable in the long term 
(ASMFC, 2007). Further, the proposed listing rule described in detail 
why the existing moratorium on directed capture of Atlantic sturgeon 
has not eliminated the incidence of sturgeon bycatch in other fisheries 
and also does not address threats associated with the destruction and 
modification of their habitat. Comments were also received that the 
proposed listing rule does not sufficiently explain why the conclusion 
in the 1998 status review report that the listing of the shortnose 
sturgeon was adequate to protect Atlantic sturgeon is no longer valid. 
While Atlantic sturgeon have benefited from some of the protections 
afforded the endangered shortnose sturgeon due to their shared presence 
in some rivers, shortnose sturgeon do not coexist in all rivers within 
the Atlantic sturgeon's range and shortnose sturgeon do not use the 
coastal and marine environments used extensively by Atlantic sturgeon. 
Additionally, there is often spatial and temporal separation of 
riverine habitat

[[Page 5933]]

use by the Atlantic and shortnose sturgeon. Adults of both species use 
similar habitats for spawning in the riverine environment, but they are 
known to use them at slightly different times of the year. As stated in 
the 1998 recovery plan for the shortnose sturgeon, spawning begins in 
freshwater from late winter/early spring in southern rivers. The 2007 
Atlantic sturgeon status review report stated that spawning adults 
generally migrate upriver in the spring/early summer (February to March 
in southern systems). Further, the 2007 Atlantic sturgeon status review 
report noted that other life stages of Atlantic and shortnose sturgeon 
may use different sections and/or different depths within the same 
river system. Therefore, the threats facing each species are not 
identical and protections for shortnose sturgeon cannot be expected to 
fully alleviate threats to Atlantic sturgeon.
    Comment 27: Several comments were received on differences in the 
1998 and 2007 status reviews in the evaluations of the threat to 
Atlantic sturgeon from habitat modification. A commenter noted that the 
1998 status review report denied the petitioner's claims that dam 
blockages, degraded water quality, and dredging significantly 
contributed to low Atlantic sturgeon abundances, but NMFS has not 
provided any evidence supporting a reversal of this conclusion. Another 
commenter specifically asked what changed between the 1998 and 2007 
status reviews to warrant the ``moderately high (4)'' ranking of 
threats from dams on the Cape Fear River in the 2007 status review. The 
commenter also asked if the recommendations on page 91 of the 1998 
status review report have been followed. The commenter requested we 
provide the baseline data on spawning and nursery habitat, including 
locations, depths, flows, substrates, carrying capacity or optimal 
population, that was recommended as ``contributing to and accelerating 
the ongoing recovery or enhancement of Atlantic sturgeon'' in the 1998 
status review. Several commenters also cited the 1998 status review's 
statements that water quality has been improving since the 1970s, 
dredging activities are increasingly rare and have minimal effects on 
sturgeon, and successful shortnose restoration is indicative of future 
rebounding of Atlantic sturgeon stocks. One of the commenters 
referenced Table 9 in the 2007 Status Review, which shows a 2004 U.S. 
Environmental Protection Agency (USEPA) water quality grade in the 
Southeast as ``B'', then questioned the extinction risk ratings in 
Table 13 of the 2007 Status Review, which rates water quality in most 
of the Southeast rivers as having a moderate risk of causing 
extinction.
    Response: In reaching our 1998 not warranted determination, we did 
not consider the loss of habitat due to dams to be a significant 
threat. Page 31 of the status review report states, ``In the southern 
region of the U.S. Atlantic coast, the fall line is commonly much 
farther inland (322 river kilometers or rkm on the Savannah River, 
South Carolina-Georgia border) or almost nonexistent (St. Johns River, 
Florida). This potentially provided more freshwater (spawning) habitat 
than in many northern rivers. However, historical records of the amount 
of habitat actually used by Atlantic sturgeon are lacking. Thus, for 
most rivers, it is not possible to determine how much habitat was lost 
due to dam construction for southern rivers.'' As stated above, the 
1998 analysis included the amount of spawning habitat available to the 
species across its range. Since that time, we have determined the 
amount of habitat lost on each of the rivers due to dams (see Table 7 
of the 2007 status review). We also have additional information on 
spawning locations for some rivers. The 1998 status review report cited 
the Savannah River as an example of a river with a fall line far inland 
and the 2007 status review report also stated that 92 percent of the 
habitat on the Savannah is unimpeded by dams. While both of these facts 
are true, the historical primary spawning habitat for Atlantic sturgeon 
(and only shoal habitat on the Savannah River), the Augusta Shoals, is 
not accessible to Atlantic sturgeon because it lies above the New 
Savannah Bluff Lock and Dam (Wrona et al., 2007; Marcy et al., 2005; 
Duncan et al., 2003; USFWS, 2003). Regarding the comment on the ranking 
for the Cape Fear River, the 1998 status review report did not have an 
estimate for how much spawning habitat was blocked by Lock and Dam 
1. The 2007 status review report included the following 
information and provides insight into the ``moderately high'' ranking 
for the threat of dams on that river (page 51): ``Historical spawning 
locations are unknown in the Cape Fear River; therefore, it is assumed 
that the fall line is the upper limit of spawning habitat. Using the 
fall line as guide, only 33 percent of the historical habitat is 
available to Atlantic sturgeon (96 km of 292 km). In some years, the 
salt water interface reaches the first lock and dam; therefore, 
spawning adults in the Cape Fear River either do not spawn in such 
years or spawn in the major tributaries of the Cape Fear River (i.e., 
Black River or Northeast Cape Fear rivers) that are not obstructed by 
dams.''
    Dredging activities are far from rare. NMFS routinely conducts 
section 7 consultations on listed species for dredging projects within 
the range of Atlantic sturgeon. Statistics on hopper dredging, the form 
of dredging most likely to take aquatic species (such as sea turtles 
and Atlantic sturgeon), can be found on the U.S. Army Corps of 
Engineers' (USACE) ``Sea Turtle Data Warehouse'' Web site (http://el.erdc.usace.army.mil/seaturtles/index.cfm). The Charleston, 
Jacksonville, Savannah, and Wilmington Districts have completed 307 
hopper dredging projects, removing over 220 million cubic yards of 
material from federally maintained navigation channels in 307 projects 
since 1991. The number of private dredging projects permitted by USACE 
would increase that number considerably. Further, these numbers do not 
include other dredging methods (e.g., cutterhead and mechanical) used 
by Federal and private entities that are less likely to directly 
interact with sturgeon species, but can modify and degrade sturgeon 
habitat.
    While water quality has generally improved since the 1970s due to 
numerous Federal, state, and local laws, including the Clean Water Act 
of 1972, water quality continues to be an issue for Atlantic sturgeon 
due to human population expansion and a variety of agricultural, 
industrial, and commercial activities in the coastal zone. Table 9 in 
the 2007 status review report cites the USEPA's National Coastal 
Condition Report (NCCR) II (2005) in grading the Southeast water 
quality as a B. The NCCR II also assigned water quality a numerical 
score of 4 (where 1 is poor and 5 is good), ranking it as ``good to 
fair.'' It is important to note that the water quality index in the 
NCCR II was based on a combination of several parameters, the most 
important of which to Atlantic sturgeon is dissolved oxygen (DO). The 
DO range considered ``good'' in the NCCR II was greater than 5 mg/L 
while a DO range of 2 to 5 mg/L was considered ``fair.'' As stated in 
the proposed listing rule, sturgeon are more highly sensitive to low DO 
than other fish species and ``low'' DO was defined as less than 5 mg/L 
(Niklitschek and Secor, 2009a, 2009b). A DO of 2 mg/L (the lower end of 
the ``fair'' scale in the NCCR II report) would be considered very poor 
for an Atlantic sturgeon, likely lethal to early life stages 
(Niklitschek and Secor, 2009a, 2009b; Niklitschek and Secor, 2005; 
Secor and Gunderson, 1998). The USEPA

[[Page 5934]]

published the NCCR III in 2008 and downgraded water quality in the 
Southeast from a 4 to a 3, ranking it as ``fair'' rather than ``good to 
fair.'' It also showed that the portion of the Southeast that had a 
``poor'' water quality index ranking increased slightly from 5 percent 
to 6 percent. While other condition indicators for the Southeast in the 
NCCR III showed improvement over the NCCR II levels (the benthic index 
was upgraded from a 3 to a 5 in the Southeast) or remained the same 
(the coastal habitat index remained a 3), the sediment quality index 
was downgraded from a 4 to a 3, and the fish tissue contaminant index 
was downgraded from a 5 to a 4. This resulted in a decrease from 3.8 to 
3.6 in the overall condition of the Southeast. The results of the NCCR 
III report do not support the commenters' assertion that water quality 
has continually improved since the 1970's. Water quality was downgraded 
to ``fair'', and DO levels included under a ``fair'' rating may be less 
than adequate for Atlantic sturgeon, particularly early life stages. 
Further, the percentage of geographic areas in the Southeast with 
``poor'' water quality increased between NCCR II and III.
    NMFS and other partners involved in the conservation of Atlantic 
sturgeon (such as the ASMFC, USFWS, and state agencies) continue to 
work on monitoring, research, and other activities, including those 
outlined in the 1998 status review, to recover Atlantic sturgeon. 
However, these are long-term, ongoing efforts, and the objectives 
outlined in the 1998 status review report are not complete. We do not 
have all of the data requested by the commenter, but what is available 
is included in the 2007 status review, the proposed listing rule, and 
the references cited therein. Once Atlantic sturgeon are listed, NMFS 
will have a greater opportunity to prioritize and standardize Atlantic 
sturgeon research, as recommended for recovery and conservation of 
Atlantic sturgeon in the 1998 status review.
    Comment 28: Several comments stated that the 2007 status review 
report was developed with little or no input from state agency experts 
and that state agency comments should be weighed heavily. One commenter 
stated that the results of the 2003 workshop that preceded the 2007 
status review report were not publicly available.
    Response: Eight state and regional experts from six state agencies 
provided their individual expert opinions on the information contained 
in the 2007 status review report and provided additional data to ensure 
the status review report included the best available. Many of the 
comments, data, and information presented in this document originated 
from state agencies. As stated in the status review report and the 
proposed listing rule, information obtained at the 2003 workshop 
prompted the initiation of the status review. Information from the 
workshop was incorporated into the 2007 status review. In addition, the 
2003 workshop was held in conjunction with a meeting of the ASMFC 
Atlantic Sturgeon Technical Committee and some of the proceedings of 
the workshop are published in various meeting summaries, reports, and 
documents on the ASMFC's Atlantic sturgeon Web site (http://www.asmfc.org).

Comments on the Need To List Atlantic Sturgeon Under the ESA

    Comment 29: Comments were received stating that Atlantic sturgeon 
should not be listed because their populations are stable, sufficiently 
large, and/or increasing. Commenters cited to Grunwald et al. (2008) 
for statements that the Altamaha and Edisto appear to have large, 
multiple year class populations that exhibit high annual reproductive 
success. The State of Georgia commented that, in order to list as 
threatened or endangered under the ESA, the condition must exist in 
``all or a significant portion of its range.'' The commenter stated the 
Altamaha River represents a significant portion of the South Atlantic 
DPS's range due to the large population of Atlantic sturgeon in that 
river and the area of the watershed. They also stated populations are 
persisting in other systems, and therefore, they do not believe 
Atlantic sturgeon are threatened or endangered throughout a significant 
portion of their range. Other commenters stated that Atlantic sturgeon 
have been observed in most South Carolina coastal rivers during the 
last two decades, although it is not known if all rivers support a 
spawning population. Currently, the only long term data set available 
for Atlantic sturgeon in South Carolina is on the Edisto River, where 
the Atlantic sturgeon population seem to be relatively stable based on 
fishery independent sampling efforts by the South Carolina Department 
of Natural Resources. A commenter stated that abundance and 
distribution presented in the proposed listing rule is inconclusive, 
citing increasing incidental take in Albemarle Sound gill nets, 
increases in average length of Atlantic sturgeon captured off North 
Carolina between 1986 and 2003, suspected spawning activity on the Pee 
Dee River during the Fall of 2003, and the doubling of CPUE of Atlantic 
sturgeon from annual surveys conducted in the Cape Fear River between 
1997 and 2003. One commenter stated that for the Savannah River, 
conclusions were incorrectly drawn in the proposed listing rule that 
the greater catch of shortnose sturgeon than Atlantic sturgeon, as 
cited in Collins et al. (1996), was not a reflection of lower than 
expected catch of Atlantic sturgeon, but rather that they were fishing 
in areas/habitat not preferred by juvenile Atlantic sturgeon.
    Response: The information presented by commenters stating that 
Atlantic sturgeon should not be listed does not provide a basis for 
revising our proposed listing rule determination of endangered for the 
Carolina and South Atlantic DPSs of Atlantic sturgeon. Grunwald et al. 
(2008) stated that ``among southeastern populations, those in the 
Altamaha (Peterson et al. in press) and Edisto appear to be large, with 
multiple year classes and high annual reproductive success.'' Grunwald 
et al. (2008) continued that ``others range from small (Ogeechee and 
Savannah) to possibly extirpated (Satilla).'' This is consistent with 
information we presented in the proposed listing rule that, at the 2003 
workshop, we determined some populations seemed to be recovering while 
others were declining, prompting our initiation of the 2007 status 
review. This comment is also consistent with our description in 
proposed listing rule of the Altamaha population as larger and more 
robust than other populations in the Southeast. We received information 
from SCDNR (presented in the previous section of comments) that they 
have captured 3,661 Atlantic sturgeon in the Edisto since 1994. If all 
of these were spawning adults, then this represents an average of 
approximately 230 spawning adults per year since 1994, which is 
consistent with our estimate of less than 300 spawning adults per year 
for this system. The low number of annually spawning adults estimated 
for Atlantic sturgeon in the Southeast (343 for the Altamaha River and 
less than 300 for the remaining spawning populations) factored heavily 
in our determination that the Carolina and South Atlantic DPSs 
warranted listing as endangered. In the proposed listing rule, we did 
not define which rivers constitute a significant portion of the 
species' range because we concluded that the Carolina and South 
Atlantic DPSs are endangered throughout their entire ranges. The 
presence of multiple spawning populations does not negate the need for 
listing. As discussed above, we do not believe that any of the riverine

[[Page 5935]]

populations within either DPS, alone or in combination, are viable and 
stable enough to constitute a significant portion of either DPS's 
range.
    We acknowledged uncertainty in the abundance and distribution 
information we presented. However, we believe that a conservative 
evaluation of the information the commenter referred to as 
``inconclusive'' supports our endangered listing determination. As the 
commenter noted, we stated that catch records for Albemarle Sound, as 
well as the Roanoke River, indicate that this population seemed to be 
increasing until 2000, when recruitment began to decline. We also 
indicated the existence of catch records and observations from other 
river systems in North Carolina (e.g., the Tar, Neuse, and Cape Fear 
Rivers), but, based on the relatively low numbers of fish caught, we 
stated it was difficult to determine whether the populations in those 
systems are declining, rebounding, or remaining static. However, the 
fact alone that low numbers of fish were caught does not logically lead 
to a conclusion that populations are increasing. The commenter's 
interpretation of data on increases in average length of Atlantic 
sturgeon caught off North Carolina between 1986 and 2003 (from Laney et 
al., 2007) is incorrect. While Figure 5 in Laney et al. (2007) showed 
an increase in average length of fish caught from 1988 to 2006, the 
commenter suggested this is due to a reduction in commercial harvest of 
larger sturgeon. Commercial harvest of Atlantic sturgeon was completely 
prohibited in 1999. The trend of increasing size was linear over the 
full time period and the rate of increase showed no association with 
the time period during which the moratorium was active. Laney et al. 
(2007) did not draw any conclusions about the increase in average size 
over the study period. However, they did conclude from the length data 
that all but five of the Atlantic sturgeon captured were juveniles. 
They attributed the low numbers of adults to either the age 
distribution of the population (i.e., low numbers of adults in the 
population because of pre-moratorium fishing) or the ability of adults 
to more successfully evade capture in nets. As we discussed in our 
response to a previous comment, it is possible that the increases in 
Atlantic sturgeon observed in the Cape Fear River surveys were due to 
environmental conditions rather than actual population increases. As we 
also stated above, the same data the commenter states shows an 
increased population in the Cape Fear River would have to be 
interpreted to show no increase in Atlantic sturgeon in other North 
Carolina Rivers, and as previously stated, neither DPS can be judged 
not in danger of extinction based on any single river population within 
the DPS.
    We do not agree that we incorrectly interpreted the lower catch of 
Atlantic versus shortnose sturgeon in the Savannah River, as reported 
in Collins et al. (1996). Researchers conducted surveys in both the 
lower river (rkm 45-75) and upper river (rkm 160-299). No Atlantic 
sturgeon were captured in the upper river, while 14 Atlantic sturgeon 
(and 189 shortnose) were captured in the lower Savannah River. As 
stated in Collins et al. (1996), juvenile Atlantic sturgeon in the size 
range likely to be captured in the shad fishery (and the size range 
observed in this study) occur in estuarine and tidally influenced 
portions of the river. According to the New Georgia Encyclopedia, the 
Savannah River is tidally influenced up to Clyo, Georgia, 61 miles (98 
rkm) upriver. Therefore, the lower river study area was within the area 
Collins et al. (1996) expects juvenile Atlantic sturgeon to occur.
    Comment 30: Several commenters recommended that NMFS implement 
alternative actions instead of listing Atlantic sturgeon. One commenter 
suggested that NMFS designate Atlantic sturgeon as a Species of Concern 
and conduct another status review in 2017. Some commenters believed 
that, in lieu of listing Atlantic sturgeon, NMFS should enter into 
multi-state, multi-agency partnerships to obtain the information they 
believe is necessary to support management actions. A commenter 
specifically requested that we provide information on any cooperative 
efforts NMFS is engaged in. One commenter suggested that increased 
fishing regulations, including the development of habitat reserves, as 
well as area and seasonal closures, are warranted instead of listing. 
Another commenter stated that NMFS should expand the 1965 Anadromous 
Fish Conservation Act in order to protect Atlantic sturgeon and said 
that imposing a listing is a poor substitute for restoring habitat and 
water quality.
    Response: We made our proposed listing determinations for the 
Carolina and South Atlantic DPSs of Atlantic sturgeon by carefully 
analyzing the declines in population abundance, available information 
on the current status of riverine spawning populations, and the threats 
facing the species, and whether their status or the threats are 
adequately addressed by existing regulatory mechanisms or protective or 
conservation mechanisms. Though moratoria on harvest and possession of 
Atlantic sturgeon were enacted by the ASMFC, NMFS, and several states, 
populations have not rebounded and the moratoria do not control 
bycatch. We believe continued overutilization of Atlantic sturgeon from 
bycatch in commercial fisheries is an ongoing impact to the Carolina 
and South Atlantic DPSs that is contributing to their endangered 
status. Because Atlantic sturgeon mix extensively in marine waters and 
may access multiple river systems, they are subject to being caught in 
multiple fisheries throughout their range. While some of the threats to 
the Carolina and South Atlantic DPSs have been reduced through the 
existing regulatory mechanisms, such as the moratoria on directed 
fisheries for Atlantic sturgeon, bycatch is currently not being 
addressed through existing mechanisms. Further, water quality continues 
to be a problem even with existing controls on some pollution sources 
and water withdrawal, and dams continue to curtail and modify habitat, 
even with the Federal Power Act. Since our evaluation of the Carolina 
and South Atlantic DPSs resulted in our determining that both DPSs are 
in danger of extinction throughout their ranges (i.e., meet the 
definition of endangered), we cannot list the DPSs as threatened or 
continue to designate Atlantic sturgeon as a species of concern.
    Section 4(b)(3)(B) of the ESA requires us to make a finding within 
12 months of receiving a petition as to whether the petitioned action 
is warranted. Section 4(b)(6)(A) of the ESA requires that a final 
listing determination be made within 12 months of publication of the 
proposed listing rule. Because we received a petition to list Atlantic 
sturgeon from the Natural Resources Defense Council (NRDC) on October 
6, 2009, that established mandatory deadlines under the ESA for 
determining whether listing of the species is warranted, and for 
associated rules. As described above, the best available scientific and 
commercial information on the status of, and threats to, Atlantic 
sturgeon is sufficient to warrant listing of the Carolina and South 
Atlantic DPSs of Atlantic sturgeon as endangered under the ESA. 
Therefore, listing cannot be postponed, and we cannot enter into multi-
state, multi-agency partnerships or increase fishery regulations to 
address Atlantic sturgeon conservation issues in lieu of listing. 
However, once listed, fishery regulations, such as the development of 
habitat reserves or seasonal/area closures, could be considered as a 
means to reduce threats to Atlantic

[[Page 5936]]

sturgeon from being taken as bycatch. If this was determined to be 
necessary for the conservation of Atlantic sturgeon, it would be done 
in collaboration with all the stakeholders, including the affected 
fishing community.
    We currently work with multiple agencies in multiple states to 
improve our knowledge of the species and to enhance conservation 
efforts. In fact, our efforts and exchange of knowledge with our multi-
agency, multi-state partners factored into our decision that listing 
the Carolina and South Atlantic DPSs of Atlantic sturgeon as endangered 
is warranted. In 1999, pursuant to section 804(b) of the Atlantic 
Coastal Fisheries Cooperative Management Act (16 U.S.C. 5101 et seq.), 
we supported the ASMFC's moratorium on Atlantic sturgeon by closing the 
Exclusive Economic Zone (EEZ) to Atlantic sturgeon retention. In 2003, 
we sponsored a workshop with the USFWS and ASMFC to discuss the status 
of sturgeon along the Atlantic Coast and determine what obstacles, if 
any, were impeding their recovery. Based on the information gathered 
from the 2003 workshop, we decided that a new review of Atlantic 
sturgeon status was needed to determine if listing as threatened or 
endangered under the ESA was warranted. The ASSRT was a multi-agency 
team consisting of NMFS, USFWS, and USGS biologists. Also, as described 
in the example given in the response above, we have entered into multi-
state, multi-agency partnerships to conduct research.
    The projects described in the previous response to document 
seasonal and spawning migrations of sturgeon, identify interbasin 
migrations, develop genetic aging techniques, and map habitat were all 
funded through the Species Recovery Grants Program (``section 6 
program'') in 2010. Section 6 of the ESA provides a mechanism for 
cooperation between NMFS and states in the conservation of threatened, 
endangered, and candidate species. Under section 6, NMFS is authorized 
to enter into agreements with any state that establishes and maintains 
an ``adequate and active'' program for the conservation of endangered 
and threatened species. Once a state enters into such an agreement, 
NMFS is authorized to assist in, and provide Federal funding for, 
implementation of the state's conservation program. Federal funding, 
provided in the form of grants, can be used to support management, 
outreach, research, and monitoring projects that have direct 
conservation benefits for listed species, recently delisted species, 
and candidate species that reside within that State. Each of the states 
occupied by the Carolina and South Atlantic DPSs has a section 6 
agreement with NMFS. In addition to the multi-year, multi-state, multi-
agency projects funded in 2010, various research projects by multiple 
agencies involving the Carolina and South Atlantic DPSs were funded 
through the section 6 program in prior years (NMFS, 2009), including 
evaluations by GADNR of Atlantic sturgeon populations and habitat in 
the Altamaha River (2003, 2004, and 2006) and the St. Mary's and 
Satilla Rivers (2008), and studies by SCDNR of Atlantic sturgeon 
growth, diet, and genetics (2003, 2005).
    The Anadromous Fish Conservation Act (AFCA) of 1965 is another 
source of collaboration between Federal and state partners. Projects 
funded under this act are conducted for the conservation, development, 
and enhancement of anadromous fishery resources and must be cleared 
with the fishery agency of the state that the work is carried out in. 
Many projects funded under AFCA are critical elements of larger 
programs to manage, restore, or enhance anadromous resources. In 1998, 
SCDNR was awarded $176,837 for a 3-year project to collect life history 
data on juvenile Atlantic sturgeon and determine seasonal habitat 
utilization, movements, and growth. SCDNR was also awarded $116,926 in 
2001 for a 3-year period to continue work on the previous project 
funded through the AFCA, as well as look at the effects of fisheries, 
such as shad gillnet fisheries, on sturgeon. Research publications 
resulting from these projects were evaluated in the proposed listing. 
AFCA funding for research in the Southeast Region is generally around 
$104,000 per year, though the program has not received funding for the 
past 3 years.
    We do not believe the listing of the Carolina and South Atlantic 
DPSs is a substitute for restoring habitat and water quality. Rather, 
the need to list the two DPSs of Atlantic sturgeon in the Southeast as 
endangered highlights the need to restore water quality and their 
habitat, because as we outlined in the proposed listing, habitat 
modification and poor water quality are significantly contributing to 
the endangered status of Atlantic sturgeon.
    Comment 31: Commenters both supporting and opposed to the proposed 
listing believed that additional information on Atlantic sturgeon, such 
as abundance, movement, life history information, habitat usage, 
response to threats, etc., is necessary. Commenters supporting the 
proposed listing believed this information is important to address 
threats to the species and determine recovery actions. Fisheries and 
Oceans Canada provided information on current Atlantic sturgeon studies 
planned or underway and expressed their interest in exploring potential 
areas of collaboration to enhance our mutual understanding of Atlantic 
sturgeon. Commenters opposed to the proposed listing believed that NMFS 
should not pursue listing before more information on abundance, 
movement, genetics, threats, etc., is obtained. A comment was received 
that NMFS is proposing listing the Atlantic sturgeon without dedicating 
funding to collecting necessary information on the species. Some 
commenters believed that a final listing determination should be 
postponed until the results of recently commenced studies on Atlantic 
sturgeon are available. Several commenters also stated that NMFS should 
implement the measures listed in the 1998 amendment to the ASMFC's FMP 
for Atlantic sturgeon and address the monitoring and data needs in it 
before making a listing determination.
    Response: As described in the proposed listing rule and in the 
previous response, section 4(b)(3)(B) of the ESA requires us to make a 
finding within 12 months of receiving a petition as to whether the 
petitioned action is warranted, on the basis of the best data available 
at the time of the determination. Because we determined the Carolina 
and South Atlantic DPSs of Atlantic sturgeon warranted listing as 
``endangered,'' we published a proposed listing rule in the Federal 
Register. The ESA requires that we publish final listing rules within 
one year from the date that we publish proposed rules to list species. 
The best available scientific and commercial data on the historical 
declines of Atlantic sturgeon, the species' failure to rebound even 
with the prohibition on directed captured and possession, the 
information on the status of current spawning populations, the 
information on the level of threats to the species from bycatch, 
habitat modification and curtailment, and the failure of existing 
regulatory mechanisms to protect the species indicate that listing of 
the Carolina and South Atlantic DPSs of Atlantic sturgeon as endangered 
under the ESA is warranted. Therefore, we cannot postpone a listing 
determination until the results of recently commenced studies are 
available. However, we agree with commenters that additional 
information on Atlantic sturgeon concerning abundance, movement, life 
history information, habitat usage, and response to threats is critical 
to fully recovering the species.

[[Page 5937]]

    Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations solely on the basis of the best scientific and 
commercial data available, whether research funding for the species is 
available or not. However, while Atlantic sturgeon were considered a 
``species of concern'' and a candidate species, NMFS dedicated funding 
to Atlantic sturgeon in order to gain knowledge necessary for 
conservation and recovery of the species. NMFS is currently funding a 
multi-year, multi-state, multi-agency project to document, through 
telemetry, seasonal and spawning migration patterns and incidences of 
inter-basin transfer for adult Atlantic (and shortnose) sturgeon in 
southeastern rivers in North Carolina, South Carolina, and Georgia, as 
well as develop, test, and implement a genetic aging technique. We are 
also funding research to map habitat in four Georgia rivers that will 
complement this study, as it overlaps with the area where the telemetry 
work is being conducted. These studies also address components of the 
monitoring and data needs outlined in the ASMFC's Atlantic sturgeon 
FMP. We will continue to conduct and fund Atlantic sturgeon research as 
funds become available in the future. We look forward to working with 
the ASMFC, Fisheries and Oceans Canada, our state partners, and other 
stakeholders in the conservation and recovery of Atlantic sturgeon, 
including obtaining the necessary research to fill in the gaps in our 
knowledge.
    Comment 32: One commenter stated that NMFS relied on non-peer 
reviewed, agency-based opinion rather than scientific fact and stated 
that future management steps would also be driven by conjecture rather 
than science. Another commenter stated that the proposed listing rule 
was politically motivated instead of scientifically warranted. A 
comment was received that NMFS is rushing to list Atlantic sturgeon to 
gain leverage in FERC relicensing activities underway, such as the 
Santee-Cooper Hydroelectric Project.
    Response: Section 4(b)(1)(A) of the ESA requires us to make listing 
determinations solely on the basis of the best scientific and 
commercial data available, not conjecture or political motivation. 
However, the ESA's best available data standard does not require us to 
limit the information we consider to published, peer-reviewed 
scientific literature. Our listing determination is consistent with the 
Services' Interagency Cooperative Policy on Information Standards (59 
FR 24271; July 1, 1994). The majority of the literature cited in the 
status reviews and the proposed listing rule consists of peer-reviewed 
publications. As required by the regulations and agency policy for 
implementing the ESA and by the Information Quality Act, status reviews 
and listing decisions themselves are peer reviewed. The proposed 
listing rule for the Carolina and South Atlantic DPS was peer reviewed 
by three experts. The list of peer reviewers, with their affiliations, 
and the peer review comments in their entirety, are posted at 
www.regulations.gov and http://www.cio.noaa.gov/Policy_Programs/prplans/ID184.html. Our responses to the peer review comments are 
stated in this document. NMFS is not rushing to list Atlantic sturgeon 
to gain leverage in FERC relicensing activities; as discussed 
previously, section 4(b) of the ESA dictates strict timelines for 
making determinations and publishing rules in response to a petition to 
list a species as threatened or endangered.

Comments on the Consequences of the Proposed Listing Rule

    Comment 33: Several comments were received stating that listing 
will not eliminate the impacts to Atlantic sturgeon (e.g., it will not 
result in the removal of locks and dams).
    Response: The commenters are correct that listing will not 
eliminate all impacts to Atlantic sturgeon. However, section 4(b)(1)(A) 
of the ESA states that the Secretary shall make listing determinations 
solely on the basis of the best scientific and commercial data 
available to him after conducting a review of the status of the species 
and taking into account efforts to protect the species. Based on our 
review of the best available information on the status of the Carolina 
and South Atlantic DPSs of Atlantic sturgeon and the efforts currently 
in place to protect the DPSs, we concluded that both DPSs should be 
listed as endangered. Our reasoning is outlined in the proposed listing 
rule and supplemented by our responses to the public comments in this 
document.
    While listing a species does not automatically remove all threats, 
the ESA does provide tools for greater protection of listed species. 
When this final rule takes effect, the prohibition on ``take'' in 
section 9 of the ESA will apply. Also, any action funded, authorized, 
or undertaken by a Federal agency that may affect Atlantic sturgeon 
from either DPS will require consultation between that Federal agency 
and NMFS under section 7 of the ESA. Once listed, section 4 of the ESA 
also requires that we develop and implement a recovery plan that must, 
in part, identify objective, measurable criteria which, when met, would 
result in a determination that the species may be removed from the 
list; this standard inherently requires that recovery plans propose 
methods to address impacts and threats to the species. In the example 
given by the commenter for locks and dams, during section 7 
consultation, NMFS would work with the operating and/or authorizing 
agency (e.g., USACE or FERC) to minimize the effects on Atlantic 
sturgeon and their habitat. This could result in a variety of 
conservation measures to allow passage of Atlantic sturgeon upstream of 
the lock or dam and to control any downstream effects from the 
structures. The installation of fish passage, dam breaching, and even 
lock/dam removal have been undertaken in the past to restore natural 
flows and allow access to habitat for anadromous species.
    Comment 34: Comments were received stating there will be negative 
consequences to various stakeholders associated with the listing. One 
commenter stated the Federal listing would increase regulations and 
potentially affect parties that do not have significant impacts on 
Atlantic sturgeon survival. Several commenters stated that there will 
be impacts to fisheries if additional restrictions are placed on them 
due to the listing, even if the interactions with Atlantic sturgeon do 
not cause significant mortality. Several comments were received that 
the listing process will hold up the issuance of new FERC licenses in 
the range of the two DPSs, which contain measures that they believe 
would benefit sturgeon. Commenters were concerned that there will be 
impacts to commerce if ship strikes result in speed restrictions and 
could be more far-reaching than the right whale protection zone. 
Commenters also believed there will be further restrictions on 
dredging, such as at large ports, that could have economic consequences 
for ports and commercial shipping interests. Commenters suggested that 
the cost to Federal and state entities associated with increased 
permitting needs should be considered in the listing. Another commenter 
stated that NMFS is using the listing to force regulators to impose 
requirements on third parties (e.g., hydropower licensees) through the 
ESA consultation process, and the impact will affect society for 
decades. The commenter said that the costs of recovery should be 
leveled equitably among all parties, including NMFS, by allocating 
funding to collecting data needed for management. One commenter stated 
that economics should not be considered in the listing.
    Response: As explained in the response above, section 4(b)(1)(A) of 
the

[[Page 5938]]

ESA states that the Secretary shall make listing determinations based 
solely on the best scientific and commercial data available to him 
after conducting a review of the status of the species and taking into 
account efforts to protect the species. The regulations implementing 
the ESA at 50 CFR 424.11(b), consistent with case law interpreting the 
ESA and its legislative history, state that the listing determination 
will be made without reference to possible economic or other impacts of 
such determination. We cannot consider the potential consequences 
(e.g., increased economic costs or regulatory responsibilities) to the 
various stakeholders in our listing determination. Through the ESA 
section 7 consultation process, measures to reduce the effect of 
impacts on Atlantic sturgeon may be required for federally funded or 
permitted projects that adversely affect fish from the Carolina or 
South Atlantic DPS, but the listing will not affect entities or 
activities that do not affect Atlantic sturgeon. NMFS is not using the 
listing to force regulators to impose requirements on third parties 
(e.g., hydropower facility licensees) and we are working with FERC to 
ensure that the listing of Atlantic sturgeon does not hold up the 
issuance of new licenses. For example, where we had already been 
engaged in section 7 consultation regarding a proposed relicensing's 
effects on the endangered shortnose sturgeon, we began ``conference 
consultations'' on the effects of such projects on Atlantic sturgeon 
once the species was proposed to be listed. Such ``conference 
opinions'' can be promptly adopted without reinitiating consultation on 
a project, if a species' listing is finalized as proposed. The listing 
determination, prompted by the 2007 status review report and the 2010 
NRDC petition, is based solely on the status of the species and its 
current level of protection from impacts and threats.
    NMFS currently dedicates funding to the recovery of listed species 
(and species of concern) through a variety of channels; we provide 
funds to the NMFS Science Centers, to academic institutions, and our 
state partners doing research. We currently have a multi-state effort 
to tag and track Atlantic sturgeon, and a simultaneous habitat mapping 
project in a portion of the area where the tagging/tracking is 
occurring, funded through our ESA section 6 grant program (Species 
Recovery Grants). However, successful recovery of the species will 
require the actions of entities other than NMFS. Section 4(f)(2) of the 
ESA states that the Secretary, in developing and implementing recovery 
plans, may procure the services of appropriate public and private 
agencies and institutions, and other qualified persons. Section 7(a)(1) 
of the ESA charges all Federal agencies to utilize their authorities in 
furthering the purposes of the ESA by carrying out programs for the 
conservation of threatened and endangered species. Recovery may also be 
facilitated through incorporating conservation measures into activities 
that potentially affect Atlantic sturgeon, for example, through section 
7(a)(2) consultation and section 10(a)(1)(B) permitting. Those 
processes provide a means to tailor the required conservation measures 
to the severity of an activity's impacts.
    Comment 35: Many commenters had concerns over the time lag in 
getting research permits to study Atlantic sturgeon if they are listed 
as endangered. Other commenters said that in addition to creating a 
lengthy research permitting process, listing will lead to sampling 
constraints that would invalidate long established sampling protocols 
and will terminate long-term indices of abundance, as a change in the 
survey protocol is essentially the initiation of a new survey. Several 
commenters stated that the listing will abolish all efforts presently 
being undertaken to study the Atlantic sturgeon, including research on 
captive Atlantic sturgeon and studies conducted by other Federal 
agencies, such as USACE. One commenter suggested that these issues be 
taken into account in deciding whether to proceed with listing as 
endangered versus threatened. In addition to concerns over Atlantic 
sturgeon research, commenters also expressed concerns over impacts to 
other fishery survey and sampling programs that may encounter Atlantic 
sturgeon, as these would also require permitting. Commenters also 
expressed concern over the ability to opportunistically collect data 
from incidental captures of Atlantic sturgeon if they are listed as 
endangered. Several commenters expressed concern that the increased 
permitting workload associated with an Atlantic sturgeon listing would 
also cause a greater delay in obtaining permits to conduct research on 
other species, such as the shortnose sturgeon.
    Response: As explained in the responses above, we cannot consider 
the potential consequences to stakeholders, including those conducting 
research on Atlantic sturgeon that aids in the management and 
conservation of the species, in making listing determinations. However, 
NMFS is making every effort to ensure that Atlantic sturgeon research, 
including ongoing care and study of captive fish, can continue 
uninterrupted once they are listed. Section 10(a)(1)(A) of the ESA 
allows NMFS to issue permits authorizing activities otherwise 
prohibited by section 9 of the ESA for the purpose of scientific 
research on listed species. The NMFS Office of Protected Resources, 
Permits Division contacted known Atlantic sturgeon researchers, at the 
time the proposed listing rule published in the Federal Register, 
requesting information on planned research activities so that an 
expedited permitting process could be put in place. Twelve applications 
for research permits for Atlantic sturgeon have been received and are 
undergoing review, and the steps necessary to comply with the National 
Environmental Policy Act and section 7(a)(2) of the ESA are already 
underway. Section 10(a)(1)(B) of the ESA allows NMFS to issue permits 
authorizing incidental take of listed species during the course of 
otherwise legal activities, such as fishery survey and sampling 
programs targeting species other than Atlantic sturgeon. If the 
activities are Federal actions, section 7 consultations can also 
provide incidental take authorization.
    In March 2010, NMFS published ``A Protocol for Use of Shortnose, 
Atlantic, Gulf, and Green Sturgeons'' (Kahn and Mohead, 2010; available 
at http://www.nmfs.noaa.gov/pr/pdfs/species/kahn_mohead_2010.pdf). 
Section 10 permits will likely require that the protocol be followed 
during Atlantic sturgeon research. The goal of the protocol is 
standardization of research practices to benefit the recovery of 
sturgeon species, including the Atlantic sturgeon, while also 
minimizing potentially negative impacts of research.
    These protocols were developed from a comprehensive review of the 
best available scientific information at the time of publication, 
including peer reviewed journals, technical memoranda, interviews with 
researchers, and empirical evidence provided by researchers. Some 
researchers expressed concern that sampling constraints associated with 
such a protocol would invalidate long-established sampling protocols 
and will terminate long-term indices of abundance. However, the 
protocol was developed with input from researchers and will serve to 
standardize research in the future. Any variation from previous 
research methods can likely be accounted for when comparing results. It 
is common in research, including Atlantic sturgeon research, for 
methods and equipment to evolve as experience

[[Page 5939]]

and technology in the field of research grows. Further, there is 
flexibility built into the protocol. For example, the introduction to 
the document states, ``When researchers or managers have reason to 
exceed recommendations in this document using less known or riskier 
techniques, NMFS recommends first using surrogate Acipenserids or 
hatchery-reared sturgeon. When researchers or managers feel non-
recommended methods must be conducted on wild listed or candidate 
species, the researchers should consult with the appropriate permitting 
agency in order to justify why their methodology is necessary to 
provide information for the recovery of these species.''
    Comment 36: Flagler County, Florida, commented that they do not 
believe Atlantic sturgeon or habitat supporting sturgeon exists in 
their county and requested that they be excluded from regulatory 
jurisdiction. Oconee County, Georgia, requested an exemption for 
previously permitted public water supply projects.
    Response: Section 4(b)(5)(a)(ii) of the ESA requires that we notify 
each county where Atlantic sturgeon are believed to occur and invite 
their comment. Because we do not know all of the exact locations where 
Atlantic sturgeon may occur, and to ensure all counties potentially 
affected by the proposed listing were contacted, we used a GIS database 
to generate a list of all counties within the watersheds of rivers with 
current or historical spawning populations of Atlantic sturgeon. This 
resulted in over 200 counties for the Carolina and South Atlantic DPSs. 
Flagler County, Florida, is part of the St. Johns River watershed. The 
St. Johns River is used by Atlantic sturgeon as nursery habitat. We 
realize that not all of the counties we contacted have Atlantic 
sturgeon present; however, upstream projects can have effects on 
Atlantic sturgeon downstream, and we chose to be more inclusive to give 
adequate opportunity for communication between NMFS and potentially 
affected counties. Moreover, Atlantic sturgeon may reoccupy areas of 
their former ranges once their populations begin to recover, or when 
impediments to their migration are removed. Areas where Atlantic 
sturgeon do not exist and where activities that could potentially 
affect Atlantic sturgeon, directly or indirectly, are not occurring, 
will not be affected by the listing of Atlantic sturgeon. We cannot 
grant exemptions for projects that may affect Atlantic sturgeon once 
they are listed as endangered. Oconee County did not state whether they 
believe their permitted water supply projects will have effects on 
Atlantic sturgeon. Once listed as endangered, we will work with such 
entities to protect Atlantic sturgeon while still carrying out the 
purpose of their projects, such as providing water to the public.

Comments on Our Analysis of Threats

    Comment 37: One commenter stated that the extinction risk analysis 
assigns arbitrary risk values to the level of threat an activity poses 
for Atlantic sturgeon populations in each river on a scale of 1 to 5. 
The commenter believed statistically sound information would be 
difficult to derive from this analysis when used to determine the 
status of a species under the ESA.
    Response: We believe this comment misinterprets the purpose and 
utility of the extinction risk analysis contained in the Atlantic 
sturgeon status review. However, that risk analysis was not 
determinative to our proposed listing because we did our own 
independent extinction risk analysis, which we determined was required 
to be consistent with the ESA. The ASSRT characterized their extinction 
risk analysis as a ``semi-quantitative'' approach. It is not possible, 
nor did the ASSRT or NMFS ever intend, to conduct statistical analyses 
on the results of the extinction risk analysis contained in the status 
review. Further, the status review report clarifies that the intent of 
the extinction risk assessment was to help summarize the status of the 
species, and did not represent a decision by the ASSRT on whether the 
species should be proposed for listing as endangered or threatened 
under the ESA. In our proposed listing rule, we considered the 
information contained in the ASSRT's extinction risk analysis as part 
of our listing determination. However, we also considered additional 
threats (e.g., drought, water allocation issues, and climate change) 
not considered by the ASSRT. In addition to evaluating the threats to 
the species, we considered the effects of small population size on the 
risk of extinction of Atlantic sturgeon DPSs. We compared estimated 
Atlantic sturgeon abundances with minimum viable population sizes 
discussed in relevant literature (see ``Conservation Status'' section 
in the proposed listing rule).

Comments on Habitat Threats

    Comment 38: Commenters supporting the proposed listing rule 
emphasized that Atlantic sturgeon are vulnerable to habitat 
destruction, noting sensitivity to low DO, pollution, and river-
specific threats from dams, dredging, and development, and a summary of 
their comments are included here. Several commenters noted that the 
Cape Fear River is above permissible mercury limits and all 13,123 
waters in North Carolina are in Category 5 (waters impaired for one or 
more designated uses by a pollutant(s)) on the state's 2010 303(d) list 
(the list of impaired and threatened waters that section 303(d) of the 
Clean Water Act requires all states to submit to the USEPA) for mercury 
due to statewide fish consumption advisories. Several commenters also 
provided NMFS with information that a proposed cement plant on the Cape 
Fear River is requesting authorization to emit 263 pounds (119 kg) per 
year of mercury and discharge 10-15 million gallons of water a day 
(mgd). One commenter cited an analysis by a marine chemist that 
conditions are favorable in the Cape Fear estuary to convert the 
mercury to more dangerous forms. The chairman of the North Carolina 
Marine Fisheries Commission identified the proposed site of the plant 
as a spawning area for Atlantic sturgeon and five other diadromous 
species. Commenters also provided information on habitat threats from 
other proposed projects, such as the Cape Fear Skyway and the North 
Carolina International Container Terminal. A commenter encouraged 
further studies on the effect of toxins on all Atlantic sturgeon life 
stages. Comments were also received supplementing information in the 
proposed listing rule on concentrated animal feeding operations 
(CAFOs). While there is a moratorium in North Carolina limiting hog 
operations, a commenter noted this does not apply to the poultry 
industry, which is greatly expanding in the state and poses a 
significant water quality threat. The commenter listed two processing 
plants, one in the Neuse River basin and one undergoing permitting in 
the Tar-Pamlico basin, that are driving the establishment of poultry 
CAFOs and will result in increased nitrogen and phosphorus loading in 
coastal waters. Another commenter, citing NCDENR Department of Water 
Quality (DWQ) as the source of information, reported the decline of 
1,600 freshwater miles (50 percent of the total freshwater miles) in 
the Neuse River basin and indicated that runoff is a contributing 
factor. They further cited NCDENR DWQ that this is likely an 
underestimate of the true number of miles affected by nonpoint-source 
runoff. The commenter also noted the ecological and water quality 
benefits from undisturbed riparian buffers and noted many instances in 
the coastal counties where construction of bulkheads and other 
shoreline

[[Page 5940]]

stabilization activities has resulted in the partial or complete loss 
of riparian buffers. Comments were received that in 1999, 60 percent of 
surface water tested in Georgia was too polluted for fishing, swimming, 
or drinking compared to national average of 40 percent. The Savannah 
River was reported to be the fourth most toxic river in the U.S., with 
48 industrial outfalls over a 200 mile stretch from Augusta to 
Savannah. Comments included that the river has high levels of mercury, 
low DO is likely to worsen if the harbor deepening project is approved, 
and temperature is also a challenge, as cold water from the J. Strom 
Thurmond Dam is discharged 75 feet below the lake surface, disrupting 
the natural temperature regime. Though the proposed listing rule noted 
that water quality in the Altamaha is relatively good, a commenter 
provided information that 19 rivers and streams making up 192 miles of 
the Altamaha basin were on the 2002 303(d) list as not meeting their 
designated uses. This is an area dominated by silviculture and 
agriculture, two paper mills, and numerous other dischargers. 
Information provided included that a Federal Superfund site is 
contributing chemicals (including mercury). A May 2009 report noted 
lesions on fish in the river, linked to poor water quality and bacteria 
present in floodwaters. A commenter also noted the St. Mary's River is 
much warmer than the 70-75 degrees Fahrenheit ideal for sturgeon (it 
reaches the 90s), DO levels drop to less than 2 parts per million at 
times, and of the coal power plants on the river, half report releasing 
water in the summer months (when high temperature and low DO already a 
problem) at peak temperatures of 100 degrees Fahrenheit or more. The 
commenter concluded thermal pollution can stress or kill any fish 
present, and will be exacerbated by poor water quality conditions in 
these rivers.
    Response: Additional information provided by commenters on the 
threats posed by the destruction, modification, or curtailment of 
Atlantic sturgeon habitat is consistent with our finding that it poses 
a significant threat to the Carolina and South Atlantic DPSs. We will 
continue to work with our partners and stakeholders through our 
existing authorities to reduce or eliminate the adverse effects of 
anthropogenic activities on sturgeon and their habitat.
    Comment 39: Comments stated that water quality information 
presented in the proposed listing rule was overly generalized and 
should receive a more comprehensive review. Some commenters stated that 
water quality is good and/or improving, and disagreed that water 
quality is affecting Atlantic sturgeon. A commenter stated that after 
more than 30 years of water quality improvements associated with the 
Clean Water Act, it is unreasonable to think habitat is not of good 
quality. Another commenter stated that water quality has been improved 
through existing Federal and state regulations and programs, such as 
the mandate to implement water quality improvement programs that are 
consistent with Total Maximum Daily Load (TMDL) plans. The Cape Fear 
River was used as an example; the comments maintained that while 
certain areas are impaired, other areas used by Atlantic sturgeon are 
in excellent condition and fully support sturgeon life functions, and 
the NCDENR DWQ's water quality data should be used. NCDENR DWQ also 
submitted comments on the proposed listing rule, providing benthic 
macroinvertebrate data for 1983 to 2010 and stated that data from 12 
river segments are fair to excellent. Commenters also said fish kills 
are not a good indicator of water quality, as reporting varies by year 
and location. One commenter stated that NMFS failed to identify water 
quality issues in the Cooper River, the Santee River meets state DO 
standards greater than 96 percent of the time, and NMFS did not 
acknowledge increased minimum flows associated with the new Santee-
Cooper license. One commenter stated that NMFS did not present a 
substantive analysis concerning the sensitivity of sturgeon to water 
quality parameters relative to water quality conditions that currently 
exist in ``critical habitat areas.'' The commenter provided a 
literature summary on Atlantic sturgeon sensitivity to DO, temperature, 
and salinity in the Cape Fear River and a water quality database from 
the Cape Fear River Estuary Program and stated that an assessment of 
these data would provide information on the spatial and temporal 
distribution of various sturgeon life stages, sensitivities, and the 
likelihood of exposure to potentially adverse water quality conditions.
    Response: As stated in our response to comment 27 on the 1998 and 
2007 status reviews, while water quality has generally improved since 
the 1970s due to numerous Federal, state, and local laws, including the 
Clean Water Act of 1972, water quality continues to be an issue for 
Atlantic sturgeon due to human population expansion and a variety of 
agricultural, industrial, and commercial activities in the coastal 
zone. The USEPA publishes the National Coastal Condition Report and the 
NCCR II, published in 2005, graded the Southeast's water quality as a 
B. The NCCR II also assigned water quality a numerical score of 4 
(where 1 is poor and 5 is good), ranking it as ``good to fair.'' The 
USEPA published the NCCR III in 2008. It downgraded water quality in 
the Southeast from a 4 to a 3, ranking it as ``fair'' rather than 
``good to fair.'' It also showed that the portion of the Southeast that 
had a ``poor'' water quality index ranking increased slightly from 5 
percent to 6 percent. While other condition indicators for the 
Southeast in the NCCR III showed improvement over the NCCR II levels 
(the benthic index was upgraded from a 3 to a 5 in the Southeast) or 
remained the same (the coastal habitat index remained a 3), the 
sediment quality index was downgraded from a 4 to a 3, and the fish 
tissue contaminant index was downgraded from a 5 to a 4. This resulted 
in a decrease from 3.8 to 3.6 in the overall condition of the 
Southeast. It is also important to note that the water quality index in 
the NCCR is based on several parameters, the most important of which to 
Atlantic sturgeon is DO. The DO level included within the ``good'' 
rating in the NCCR II was greater than 5 mg/L, while a DO range of 2 to 
5 mg/L is included in the ``fair'' rating. As stated in the proposed 
listing rule, sturgeon are more highly sensitive to low DO than other 
fish species and ``low'' DO for sturgeon has been defined as less than 
5 mg/L (Niklitschek and Secor, 2009a, 2009b). A DO of 2 mg/L (the lower 
end of the ``fair'' scale in the NCCR II report) would be considered 
very poor for an Atlantic sturgeon and is likely lethal to early life 
stages. The USEPA also monitors TMDLs, a calculation of the maximum 
amount of a pollutant that a waterbody can receive and still safely 
meet water quality standards. Under section 303(d) of the Clean Water 
Act, states, territories, and authorized tribes are required to develop 
lists of impaired waters. These are waters that are too polluted or 
otherwise degraded to meet the water quality standards set by states, 
territories, or authorized tribes. Based on 2006 to 2010 data, each of 
the states in the range of the Carolina and South Atlantic DPSs had 
impaired waters under section 303(d) of the Clean Water Act: Florida 
(828 waterbodies), Georgia (215 waterbodies), South Carolina (1,060 
waterbodies), North Carolina (902 waterbodies), and Virginia (2,534 
waterbodies). Of the rivers and streams assessed, 51 to 66 percent of 
these waters were impaired in each of the southeastern states. Between 
24 and 84 percent of the lakes, reservoirs, and

[[Page 5941]]

ponds assessed in each southeastern state were listed as impaired, as 
were 22 to 95 percent of bays and estuaries assessed. In the Cape Fear 
River basin, the example used by the commenter, 205 sections of the 
river are listed as impaired on the 303(d) list. As suggested by the 
commenter, we reviewed water quality information from NCDENR DWQ. We 
reviewed the most recent Water Quality Plan (October 2005) available 
for the Cape Fear River basin (publicly available at http://h2o.enr.state.nc.us/basinwide/draftCPFApril2005.htm), which supplements 
the TMDL data provided by the USEPA. The plan (Chapter 27, Figure 31) 
indicates ``habitat degradation'' and low DO occur in over 140 miles of 
impaired streams. Low DO is also estimated to occur in approximately 
6,500 acres of impaired estuarine waters (Chapter 27, Figure 32). 
Figures 37 and 38 note various sources of stressors to streams and 
estuarine waters, respectively. While wastewater treatment, municipal 
stormwater, agriculture, land clearing, development, and impervious 
surfaces are listed as potential sources, the largest source affecting 
water quality in impaired streams and estuarine waters in the Cape Fear 
River basin is ``unknown.''
    NCDENR DWQ commented on the proposed listing rule, as well. They 
stated that a review of benthic macroinvertebrate data from the Cape 
Fear mainstem demonstrates that the river is supporting robust benthic 
invertebrate communities. Benthic invertebrate communities serve as 
prey for foraging Atlantic sturgeon. NCDENR DWQ stated that 6.2 percent 
of the samples received ``excellent'' bioclassifications, and 31.2 
percent each received ``good'', ``good to fair'', and ``fair'' 
bioclassifications. There were no samples receiving ``poor'' 
bioclassifications. However, with the exception of one sample collected 
in 2003, the remaining samples were collected in the 1980's and 1990's. 
Also, benthic invertebrate communities are only one of the many factors 
affecting the quality and suitability of habitat for Atlantic sturgeon. 
Regarding NCDENR DWQ's comment that fish kills were not a good 
indicator of water quality and that some of the fish kills on the Cape 
Fear River are likely due to naturally occurring low DO from blackwater 
swamps, we also reported this in the proposed listing rule. The comment 
that fish kill reporting varies by year and location, and is not a good 
indicator of water quality, is also consistent with our treatment of 
fish kill information in the proposed listing rule. We did not compare 
fish kill information across river systems with varying degrees of 
monitoring and reporting effort, rather we only included fish kill data 
as anecdotal evidence of naturally occurring low DO in the lower Cape 
Fear River.
    With regard to habitat modification and curtailment in the Santee-
Cooper system, the majority of the discussion in the proposed rule 
focused on the threats to Atlantic sturgeon from dams. The Clean Water 
Act 303(d) list of impaired waters includes 21 waterbodies within the 
Santee River basin and 34 waterbodies within the Cooper River basin. 
The commenter stated that the Santee River meets state DO standards 
greater than 96 percent of the time but did not provide data or a 
reference we could evaluate. The list of 303(d) waters in the Santee 
River basin lists 19 waterbodies that are listed as a result of low DO. 
We also reviewed the South Carolina State Water Assessment of the 
Santee River Basin, prepared by SCDNR (2009), which lists 9 waterbodies 
that are partially supporting of aquatic life and 19 waterbodies that 
are non-supporting of aquatic life, based on DO. The new license for 
the Santee-Cooper Hydroelectric project has not yet been issued, 
therefore the magnitude and timing of implementation of required 
increased minimum flows is unknown at this time. Significant concerns 
still exist over the inability of Atlantic sturgeon to access over 60 
percent of historical habitat in the Santee-Cooper system due to the 
presence of the dams, though this would be partially ameliorated by 
fish passage for sturgeon that was prescribed in 2007 by NMFS for the 
Santee and Cooper Rivers pursuant to the Federal Power Act, if these 
prescriptions are implemented.
    A commenter stated that we did not present an analysis of water 
quality in critical habitat areas. NMFS has not designated critical 
habitat, but the proposed listing rule and responses supplied in this 
document detail water quality conditions and potential effects of 
reduced water quality in habitat used by the Carolina and South 
Atlantic DPSs of Atlantic sturgeon. The literature summary on Atlantic 
sturgeon sensitivity to DO, temperature, and salinity in the Cape Fear 
River and a water quality database from the Cape Fear River Estuary 
Program is consistent with information in the proposed listing rule. 
The literature reviewed by the commenter was also cited in the 2007 
status review report and/or the proposed listing rule.
    Comment 40: A commenter stated that silviculture and forest 
manufacturing facilities do not appear to have significant implications 
for sturgeon or their habitat, particularly when compared to other land 
uses like agriculture or development. The commenter supplied 
information on forestry best management practices, sedimentation, the 
use of herbicides, and urged NMFS to reconsider its assertion that 
forest management practices pose a significant threat to biological 
diversity or to habitat for the Atlantic sturgeon. The commenter 
asserted that water quality has improved and will continue to improve 
through existing Federal and state regulations and program. The 
commenter also stated that implementation rates for forestry best 
management practices (BMPs) are high nationally, and there is an 
extensive body of scientific literature that confirms that forestry 
BMPs are effective. The commenter also indicated that state agencies 
and sustainable forestry certification programs are effective at 
educating the forest management community about forestry BMPs and 
encouraging their implementation, and providing reasonable assurance 
that forestry BMPs are being implemented effectively. The commenter 
concluded that sustainable forest management that adheres to BMPs does 
not pose a threat to terrestrial or aquatic organisms, including 
Atlantic sturgeon.
    Response: The proposed listing rule included silviculture and 
forestry practices as potential threats to Atlantic sturgeon. The 
proposed listing rule stated that the spawning habitat of the Carolina 
DPS occurs within the Mid-Atlantic Coastal Plain ecoregion. The Nature 
Conservancy lists land conversion (e.g., forests converted to timber 
plantations) as one of several significant threats in the ecoregion. 
The South Atlantic DPS occurs within the South Atlantic Coastal Plain 
ecoregion. The Nature Conservancy described the primary threats to 
biological diversity in this ecoregion as silvicultural practices, 
including conversion of natural forests to highly managed pine 
monocultures and the clear-cutting of bottomland hardwood forests. The 
proposed listing rule also noted that in the Altamaha River, which has 
the largest spawning population of Atlantic sturgeon in the Southeast, 
water quality is good at this time, but the drainage basin is dominated 
by silviculture and agriculture, with two paper mills and over two 
dozen other industries or municipalities discharging effluent into the 
river. While we agree that some existing programs are effective, 
degraded water quality continues to pose a threat to Atlantic sturgeon 
in

[[Page 5942]]

many systems despite existing regulatory mechanisms.
    We appreciate the information provided by the commenter on the 
degree of threat to Atlantic sturgeon from forestry activities, as well 
as forestry BMPs and the efforts of the industry to ensure successful 
BMP implementation, including education and monitoring. However, we do 
not believe that our characterization of the potential threat of 
forestry practices to Atlantic sturgeon was overemphasized or 
overstated in the proposed listing rule, or was inconsistent with 
information provided by the commenter. While we do not disagree with 
the comments regarding the effective implementation of forestry BMPs, 
we note that implementation of the BMPs is voluntary in some cases, and 
that while BMP implementation nationally is high (89 percent), it is 
not 100 percent. The commenter also stated that implementation rates 
for BMPs can be used to understand trends and identify areas where 
improvement is necessary; however, BMP evaluations are detailed reports 
of many on-site practices, are designed to highlight potential problems 
for post-harvest monitoring, and are not a direct measure of water 
quality impact. We look forward to working with the commenter and other 
industry representatives to proactively evaluate and address forestry 
impacts on Atlantic sturgeon.
    Comment 41: We received multiple comments supporting our evaluation 
of the effects of dams on Atlantic sturgeon and their habitat; some 
commenters provided additional information on the nature of the threat 
of dams to Atlantic sturgeon. A commenter concerned about the effects 
of dams on Atlantic sturgeon recommended continued investigation into 
ways to provide fish passage in areas where barriers obstruct access to 
essential habitat or where passage is otherwise obstructed in a manner 
that can injure and/or kill Atlantic sturgeon and noted that effective 
sturgeon passage does not exist. Another commenter provided NMFS with 
additional information on threats from dams. For example, the commenter 
detailed the effects of bed coarsening, which can reduce the ability of 
Atlantic sturgeon to forage for food, impair nutrient and waste 
assimilation through altered flow regimes and greater evaporation from 
the presence of reservoirs, and effect biodiversity as a result of 
habitat loss. The commenter also provided data on the presence of dams 
in Georgia, which has the highest density of dams in the Southeast. The 
commenter provided information that the number of dams listed in the 
National Dam Inventory (NDI) shows 4,423 reservoirs in Georgia but the 
actual number is believed to be higher based on studies conducted by 
UGA, which estimates 68,000 reservoirs in Georgia. The commenter stated 
that American Rivers named the Altamaha the 7th most endangered river 
in the country based on its importance to fisheries and multiple 
threats from five proposed dams that would have severe effects on fish 
species, including loss of habitat and increased pollutant 
concentrations, and noted that the governor of Georgia urged 
legislative action to build new reservoirs. The commenter also noted 
that the Savannah River is impacted by New Savannah Bluff Lock and Dam 
and J. Strom Thurmond Dam. The latter is the largest reservoir east of 
the Mississippi and Atlantic sturgeon are blocked from habitat above 
Augusta where data shows they previously occurred. The commenter also 
noted loss of habitat from dams in the St. Johns.
    Response: Additional information provided by commenters on the 
threats posed by dams to Atlantic sturgeon and their habitat is 
consistent with our finding that dams pose a significant threat to the 
Carolina and South Atlantic DPSs.
    Comment 42: We received multiple comments disagreeing with our 
evaluation of the effects of dams on Atlantic sturgeon and their 
habitat. A commenter stated that the proposed listing rule failed to 
indicate the extent to which Atlantic sturgeon access to habitat has 
been lost on the Roanoke, Tar-Pamlico, and Neuse River systems, all of 
which have dams. Other commenters disagreed with the evaluation of dams 
in the proposed listing rule. One stated that the majority of Atlantic 
sturgeon habitat is available, as 91 percent of historical spawning 
habitat is unimpeded by dams, 27 of 35 rivers contain 100 percent of 
their historical habitat (e.g., Pee Dee River), and 32 have over 75 
percent of the historical range available. Another commenter stated 
that NMFS has not evaluated the quality of the remaining 91 percent of 
habitat available to Atlantic sturgeon. One commenter questioned 
whether the estimated 64 percent of historical habitat impeded by Lock 
and Dam 1 on the Cape Fear was accurate and provided his own 
estimate of 30 percent. A comment was received that the use of 
watershed miles as the measure of habitat loss due to dams suggests 
that the entire river system is critical habitat and any reduction is a 
reduction in sturgeon habitat. The commenter contended that since 
critical habitat has not been determined or designated, it is 
presumptuous to assume every portion of the river is appropriate 
habitat without an analysis or evaluation. The commenter also believed 
that the proposed listing rule gave undue weight to restoration of 
these habitats rather than prioritizing actions that would have 
significant and immediate benefits to Atlantic sturgeon (e.g. reducing 
bycatch). A similar comment was received that NMFS has placed too much 
emphasis on restoring historical habitat, which is poorly defined and 
may be of questionable importance to Atlantic sturgeon. The commenter 
believed that there are lower costs and larger near-term gains in 
protecting, mitigating, and enhancing currently accessible habitat than 
trying to reconnect historical habitat in highly developed and 
substantially modified watersheds. Another commenter said future 
habitat availability will increase through fish passage efforts on the 
lower Cape Fear River and through hydropower flow enhancements on the 
Pee Dee River, and similar flow enhancements will occur on other rivers 
through FERC relicensing projects. A commenter stated that there is a 
lack of knowledge about the exact location of historical spawning 
habitat on the Roanoke River. A commenter stated that both the Gaston 
and Roanoke Rapids hydroelectric facilities are located above the fall 
line. Given that the Carolina DPS is estimated to be less than 3 
percent of the historical abundance and lack of documentation of 
significant spawning historically occurring upstream of the fall line, 
it seemed unlikely to this commenter that restricted spawning habitat 
is limiting restoration efforts. The commenter stated that these 
hydroelectric facilities have been modified to simulate more natural 
flow during spawning season and during the FERC relicensing, measures 
to limit peaking operations and enhance flows were put in place. The 
commenter also said the facilities adhere to North Carolina state water 
quality standards for temperature and DO except when flood control 
flows from upstream at the Kerr Dam overwhelm their ability to maintain 
the water quality standards. A commenter stated that the Cape Fear Lock 
and Dam 1 has been in place since 1915 and Atlantic sturgeon 
have obviously adapted to it since they are still spawning.
    Response: In regard to the comment that the proposed listing rule 
failed to indicate the extent to which Atlantic sturgeon access to 
habitat has been lost on the Roanoke, Tar-Pamlico, and Neuse River 
systems, Table 7 of the 2007 status

[[Page 5943]]

review report estimates the percentage of riverine habitat, in river 
kilometers, available to Atlantic sturgeon in each river system shows 
that access to 18 percent of the habitat on the Roanoke River is 
blocked by the Roanoke Rapids Dam. Table 7 shows no loss on the other 
two rivers. The percentages of historical habitat unimpeded by dams 
presented by another commenter are mostly consistent with Table 7 of 
the status review. As documented in Table 7, the 91 percent of 
historical habitat available to Atlantic sturgeon includes 36 rivers 
(not 35), 2 of which are in Canada and not included in the proposed 
U.S. listings. Coast-wide, 25 U.S. rivers, plus the 2 Canadian rivers, 
are listed as having 100 percent of their historical habitat 
accessible. As noted by the commenter, an additional 5 rivers have 
greater than 75 percent of their river miles unimpeded by dams. 
However, three rivers in the Southeast have 62 to 64 percent of their 
length inaccessible to sturgeon due to the presence of dams. Moreover, 
rivers without dams but without spawning populations present, may not 
provide habitat to sturgeon for decades; because the vast majority of 
Atlantic sturgeon spawn in their natal river, they are not likely to 
seek out spawning habitat in other rivers and reduced spawning success 
due to lack of appropriate habitat can greatly affect the recovery 
potential of a spawning population. In addition to preventing or 
reducing the ability to spawn, dams can have effects far downstream 
that reduce the suitability of river habitat for other sturgeon life 
functions. As identified in the 2007 status review report and the 
proposed listing rule, in addition to blocking habitat upstream, dams 
also degrade habitat downstream by altering DO concentrations and 
temperature; artificially destratifying the water column; changing 
sediment load and channel morphology; accelerating eutrophication and 
changing nutrient cycling; and contaminating water and sediment. The 
suitability of riverine habitat for Atlantic sturgeon spawning and 
rearing also likely depends on annual fluctuations in flow, which can 
be greatly altered or reduced by the presence of dams, as has been 
shown for sturgeon species (Richter and Thomas, 2007; Pringle et al., 
2000; Beamesderfer and Farr, 1997). Activities associated with dam 
maintenance, such as dredging and minor excavations along the shore, 
can release silt and other fine river sediments that can be deposited 
in nearby spawning habitat.
    The estimate of 64 percent of historical habitat on the Cape Fear 
River blocked by Lock and Dam 1 was questioned by a commenter, 
who provided his own estimate of 30 percent of historical habitat 
blocked on the Cape Fear River. The estimate for the Cape Fear River 
included in Table 7 of the status review report is accurate, and 
potentially even an underestimate of the amount of habitat blocked to 
Atlantic sturgeon by Lock and Dam 1. The estimate came from 
thesis research (Oakley, 2003) that used regression models based on 
river characteristics, including total river length and distance to the 
first dam, to help predict presence of shortnose sturgeon within a 
river system. BASINS 3.0, a GIS-based program developed by the USEPA, 
was used to estimate these physical characteristics for each river 
modeled in the study, including the Cape Fear. Information from the 
thesis, presented in Table 7, lists rkm 95 as the location of Lock and 
Dam 1 and rkm 267 as the fall line, which indicates 172 rkm 
(or 64.4 percent of the Cape Fear River) are inaccessible to Atlantic 
sturgeon. However, in ``Rivers of North America'' (Benke and Cushing, 
2005) it is stated that the fall line on the Cape Fear is located at 
the confluence of the Deep and Haw Rivers at rkm 313, which would 
indicate 218 rkm (or 69.7 percent of the Cape Fear River) are 
inaccessible to Atlantic sturgeon due to Lock and Dam 1. In 
addition, NCDENR's Office of Environmental and Public Affairs notes 
that access to 160 miles (257 rkm) of habitat has been blocked to 
anadromous species on the Cape Fear River (http://www.eenorthcarolina.org/public/ecoaddress/riverbasins/capefear2.pdf).
    In response to comments about the use of river miles/kilometers as 
a measure of habitat loss and availability rather than habitat quality, 
we note that Table 7 of the status review report states ``river 
kilometers is only an estimate of habitat availability and should not 
be confused as a reference to habitat suitability, as many factors can 
reduce the quality of this available habitat (e.g., impeded by water 
flow, dredging, water quality and other similar factors).'' The 
commenter is correct that we have not designated critical habitat, and 
we are not suggesting that the entire river is necessary for spawning 
or other life functions. Because we have little historical or current 
information about the exact locations of Atlantic sturgeon habitat, the 
best available information was the amount of habitat inaccessible to 
sturgeon above dams. We agree that habitat quality and its suitability 
for different sturgeon life functions is a necessary consideration in 
evaluating the extent of accessible habitat. In fact, the use of river 
kilometers below dams as a measure of habitat availability is 
potentially an overestimate of the amount of spawning habitat available 
to Atlantic sturgeon. For instance, Table 7 indicates that only 8 
percent of historical habitat on the Savannah River is impeded by dams, 
based on the location of the New Savannah Bluff Lock and Dam (NSBL&D) 
at rkm 317 and the fall line at rkm 343. However, the Augusta Shoals, 
the only rocky shoal habitat on the Savannah River and the former 
primary spawning habitat for Atlantic sturgeon in the river (Wrona et 
al., 2007; Marcy et al., 2005; Duncan et al., 2003; USFWS, 2003), is 
located above NSBL&D, and is inaccessible to Atlantic sturgeon. While 
the status review report states that 92 percent of the historical 
habitat on the Savannah River is still accessible (based on river 
kilometers below NSBL&D), in actuality, the remaining available 
spawning habitat is likely far less. Additionally, while spawning 
habitat may exist downstream of many dams, the quality of that habitat 
is often degraded, due to fluctuations in water level, velocity, and DO 
resulting from discharges from the dam, as well as upstream migration 
of the salt wedge, resulting from reduced freshwater discharge from 
upstream and/or channel modifications downstream. Because Atlantic 
sturgeon must spawn in freshwater and the resulting offspring must have 
adequate freshwater exposure for growth before entering saltwater, the 
encroachment of the salt wedge can reduce the availability of spawning 
habitat and even reduce the survival of YOY even if spawning is 
successful.
    One commenter felt that we did not evaluate the quality of the 91 
percent of total undammed habitat available to Atlantic sturgeon; 
however, the proposed rule went into great detail about dredging and 
water quality and quantity issues existing below dams that affect the 
suitability of spawning habitat for the Carolina and South Atlantic 
DPSs. While we have little historical or current information about the 
exact locations of Atlantic sturgeon habitat, we are currently funding 
research to document habitat utilization of Atlantic sturgeon. We do 
not believe the proposed listing rule gave undue weight to the loss of 
access to habitat due to dams or underestimated other threats, such as 
Atlantic sturgeon bycatch. We did not do a cost-benefit analysis on 
potential conservation and recovery efforts, as the ESA and its 
implementing regulations prohibit this type of consideration in listing 
determinations. We are hopeful about pending efforts on

[[Page 5944]]

the Cape Fear and Pee Dee Rivers, and we will continue to work with 
FERC and other stakeholders to improve habitat quality and access 
during relicensing activities. However, in our listing determinations, 
we had to evaluate the current status of, and threats to, Atlantic 
sturgeon, and how those are affected by existing regulatory mechanisms 
and protective efforts.
    Contrary to comments about the Roanoke River, we do have 
information suggesting spawning historically occurred above the fall 
line in that system (Kahnle et al., 1998; Armstrong and Hightower, 
2002). However, in the proposed listing rule, we focused primarily on 
downstream effects associated with flow, water temperature, and DO 
levels in the Roanoke River from the Kerr Dam and the Gaston Dam/
Roanoke Rapids facilities. Consistent with the comments received, we 
acknowledged in the proposed listing rule that there have been 
modifications to facilities operations on the river to simulate natural 
flows and that this has likely benefited Atlantic sturgeon. However, we 
also detailed the continuing threat to Atlantic sturgeon from hypoxic 
waters released from the Kerr Dam on the Roanoke in the summer, and the 
sensitivity of Atlantic sturgeon to hypoxia coupled with high 
temperature. Consistent with the comments, the proposed listing rule 
states that spawning populations occur in the Roanoke and Cape Fear 
Rivers. However, the failure of populations to rebound does not signify 
their adaptation to these conditions, but rather suggests the threat 
posed by dams to the Carolina and South Atlantic DPSs is contributing 
to their status.
    Comment 43: Several comments were received on the effects of water 
withdrawals on Atlantic sturgeon habitat. A commenter supplemented 
information included in the proposed listing rule that demand for water 
for consumption purposes in the Southeast is not only going to increase 
with increasing population, but also due to increasing energy demands. 
The commenter stated that power plants withdraw an average of 40 
billion gallons of water every day, representing 65 percent of total 
water withdrawals. The commenter also noted that there are currently 25 
interbasin transfers in Georgia, involving 6 out of 14 of the state's 
river basins. One commenter noted that there is substantial information 
for water withdrawals in North Carolina and permits are required to 
some extent for agricultural withdrawals. Another commenter stated that 
the proposed listing rule discussed permitted water quantities but did 
not provide data on the available volume of water at each source or 
cite studies that link permitted interbasin transfers to the 
degradation of surface waters. A commenter stated that conservation and 
recovery decisions should not be based on the assumption that most, 
possibly all, subpopulations of Atlantic sturgeon are at risk of 
entrainment and impingement and that the impact from water intakes 
should be further evaluated according to the relationship between the 
activity, river, and sturgeon population.
    Response: Additional information provided by commenters on the 
threats posed by water withdrawals to Atlantic sturgeon and their 
habitat is consistent with our finding that these activities pose a 
significant threat to the Carolina and South Atlantic DPSs. A commenter 
noted that there is substantial information on water withdrawals in 
North Carolina and permits are required to some extent for agricultural 
withdrawals. This is consistent with information we presented in the 
proposed listing rule on permitted water withdrawals. A commenter 
stated that we did not provide data on the available volume of water at 
each source or cite studies linking permitted interbasin transfers to 
the degradation of surface waters. Real-time water data for the United 
States is publicly available on the USGS Web site (http://waterdata.usgs.gov/usa/nwis/rt). However, as we stated in the proposed 
listing rule, categories of potentially large water withdrawals in 
several states do not require permits and are therefore not easily 
quantifiable. While river and stream flow data is monitored and 
recorded, we do not know how much non-permitted water withdrawals 
account for reductions in flow, and often we do not have data on the 
historical (i.e., unimpaired) flow regimes in most rivers to quantify 
the degree to which flow volumes are currently reduced (Fisher et al., 
2003). The proposed listing rule included citations from studies 
describing the impacts of water withdrawals, permitted and non-
permitted, on water quantity and quality parameters important to 
Atlantic sturgeon (e.g., UGA, 2002; CBO, 2006; Georgia Water Coalition, 
2006). The Congressional Budget Office (CBO, 2006) directly quantified 
the effects of water withdrawal on other ESA-listed species. CBO stated 
that among the 663 species listed as ``threatened'' or ``endangered'' 
in 1995, 141 were affected by the diversion or drawdown of surface 
water, 82 by water-level fluctuation, 26 by water-level stabilization, 
61 by water temperature alteration, 103 by reservoirs, 71 by the 
drawdown of groundwater, and 14 by alteration of water's salinity. In 
addition to the citations included in the section on water allocation, 
many of the citations in the remainder of the ``Water Quality'' section 
of the proposed listing rule specifically address the effects of 
alteration of DO, temperature, and pollutant assimilation (potential 
effects associated with water withdrawals) on Atlantic sturgeon (e.g., 
Niklitschek and Secor, 2005, 2009a, 2009b; Secor and Gunderson, 1998; 
Secor, 1995).
    The proposed listing rule stated that the withdrawal of water from 
rivers that support Atlantic sturgeon populations was considered to 
pose a threat as a result of impingement and entrainment of eggs, 
larvae, and small juvenile sturgeon; however, data are lacking to 
determine the overall impact of this threat on sturgeon populations, as 
impacts are dependent on a variety of factors (e.g., the species, time 
of year, location of the intake structure, and strength of the intake 
current). Of the three extant studies on direct impacts to Atlantic 
sturgeon from water withdrawals, only one was conducted in the 
Southeast at the Edwin I. Hatch Nuclear power plant, which withdraws 
from, and discharges to, the Altamaha River. Pre-operational drift 
surveys were conducted and only two Acipenser larvae were collected. 
Entrainment samples were collected for the years 1975, 1976, and 1980, 
and no Acipenser species were observed in the samples (Sumner, 2004). 
As stated in the proposed listing rule, the migratory behavior of 
larval sturgeon may allow them to avoid intake structures, since 
migration is active and occurs in deep water (Kynard and Horgan, 2002). 
The 2007 status review report ranked the threats from impingement and 
entrainment as low for both DPSs, and we concurred. If additional 
information becomes available on impingement and entrainment of 
Atlantic sturgeon, that information will be evaluated on a level 
appropriate to the activity, the river, and the sturgeon population.
    Comment 44: Comments were received about the effects of dredging on 
Atlantic sturgeon and their habitat. One commenter pointed to a 2007 
study that Atlantic sturgeon in the St. Lawrence River avoided areas 
created by displaced sediments from dredging activities and that those 
sites have lower value as juvenile benthic feeding habitat as compared 
to control sites. In contrast, USACE commented that a 2009 study showed 
dredging operations did not impede movement or utilization of habitat 
by Atlantic sturgeon, and that direct take of sturgeon by hopper

[[Page 5945]]

dredging between 1990 and 2005 was observed to be 0.6 fish per year. A 
commenter noted the 1998 status review report listed dredging on 
spawning grounds as a stressor, but that all dredging in the Cape Fear 
River occurs in saltwater, so the commenter believed the only habitat 
being affected is nursery habitat. The commenter requested NMFS provide 
information on dredging in the freshwater portion of the Cape Fear 
River and whether there are any known effects to shortnose sturgeon 
from dredging by the Corps in the past 10 years. Another commenter 
noted frequent maintenance dredging occurs in the Savannah and St. 
Johns Rivers. One commenter was concerned that different types of 
dredging (new, maintenance, marine mining, etc.) in different 
environments (small portion of river versus entire navigation channel; 
narrow, shallow sections versus wide, deep sections) were treated the 
same in the proposed rule and that a listing could inappropriately 
curtail or eliminate all maintenance dredging. Several commenters 
believed that additional research on the effects of dredging on 
Atlantic sturgeon habitat should be undertaken. One commenter 
recommended that the identification of spawning, nursery, foraging, and 
overwintering habitats be given top priority in rivers with existing 
Atlantic sturgeon populations where there is significant current or 
proposed dredging or port expansion activity.
    Response: Additional information provided by commenters on the 
threats posed by dredging to Atlantic sturgeon and their habitat is 
consistent with our finding that these activities pose a significant 
threat to the Carolina and South Atlantic DPSs. A commenter questioned 
the level of threat to sturgeon from dredging in the Cape Fear River, 
and requested information on effects to shortnose sturgeon from 
dredging. As cited in the 2007 status review, Dickerson (2005) reported 
observed takings of sturgeon from dredging activities conducted by 
USACE between 1990 and 2005. Overall, 24 sturgeon (2 Gulf, 11 
shortnose, and 11 Atlantic sturgeon) were taken by dredges during those 
years. Of the 24 sturgeon captured, 15 (62.5%) were reported as dead. 
In 2006-2008, the South Atlantic Division (North Carolina to Florida) 
of USACE reported a single take of a 125 cm Atlantic sturgeon 
(categorized in the incidental take report as ``fresh dead'') during 
dredging of the Savannah Harbor entrance channel. Relocation trawling 
for the same project captured and moved eight Atlantic sturgeon. Though 
dredging is a source of mortality, and therefore a concern to NMFS, we 
believe the most significant potential threats to Atlantic sturgeon 
from dredging are associated with effects to their habitat. In response 
to the commenter requesting information on dredging in freshwater on 
the Cape Fear River, we do not know of specific examples. However, we 
have significant concerns over dredging in the portions of the river 
Atlantic sturgeon can access (i.e., habitat below Lock and Dam 
1), which includes both spawning and nursery habitat. As noted 
in the proposed listing rule, dredging operations (including the 
blasting of rock) on the lower Cape Fear River, Brunswick River, and 
port facilities at the U.S. Army's Sunny Point Military Ocean Terminal 
and Port of Wilmington are extensive. Moser and Ross (1995) found that 
some of the winter holding sites favored by sturgeon in the lower Cape 
Fear River estuary also support very high levels of benthic infauna and 
may be important feeding stations. The Shortnose Sturgeon Recovery Plan 
also notes that, in addition to direct effects, dredging operations may 
also impact shortnose sturgeon by destroying benthic feeding areas, 
disrupting spawning migrations, and filling spawning habitat with 
resuspended fine sediments. A commenter noted that frequent maintenance 
dredging occurs in the Savannah and St. Johns River, which was also 
noted in the proposed listing rule.
    The proposed listing rule did not include a detailed evaluation of 
the different forms and locations of dredging. Rather, we focused on 
the effects of dredging that pose the greatest threat to Atlantic 
sturgeon and their habitat, including the disturbance or removal of 
benthic fauna, elimination of deep holes, and alteration of rock 
substrates, as well as the creation of turbidity/siltation, contaminant 
resuspension, noise/disturbance, and alterations to hydrodynamic regime 
and physical habitat. We have a large body of knowledge on potential 
effects to habitat from our ESA section 7 consultations with USACE on 
dredging in Gulf sturgeon habitat, as well as in habitat on the East 
Coast for shortnose sturgeon. It is unlikely that listing Atlantic 
sturgeon would inappropriately curtail or eliminate all maintenance 
dredging, as maintenance dredging is a common occurrence in areas 
inhabited by ESA-listed Gulf and shortnose sturgeon. However, through 
our ESA consultations with USACE and other action agencies, we may 
recommend or require conservation measures that reduce or eliminate 
potential impacts to Atlantic sturgeon and their habitat. We agree that 
additional research on the effects of dredging on Atlantic sturgeon 
habitat and on the locations of spawning, nursery, foraging, and 
overwintering habitat in relation to potential dredging activities 
would be useful. We are constantly working to expand our knowledge on 
the effects of dredging on ESA-listed (and candidate) species and their 
habitat, which includes Atlantic sturgeon.
    Comment 45: A commenter concerned about the effects of climate 
change recommended additional research and monitoring with respect to 
the impacts and synergistic effects of climate change on Atlantic 
sturgeon subpopulations. Another commenter stated that climate change 
will be the single largest driver of changes in biodiversity by the end 
of the 21st century and that disproportionate effects will be 
experienced in the Southeast, which is the most vulnerable region due 
to its long low-lying coastline and high biodiversity. The commenter 
noted that the South will be drier, with climate models predicting 
decreases in precipitation in the summer combined with higher 
temperatures, resulting in increased evaporation. The commenter also 
noted the Carolinas and Georgia have already shown significant trends 
of increasing drought from 1958 to 2007. A commenter noted that drought 
occurred in North Carolina during the same time frame drought occurred 
in South Carolina and Georgia, which further supports the threat to 
Atlantic sturgeon from such occurrences. In addition to habitat threats 
from climate change outlined in the proposed listing rule, a commenter 
provided information and a presentation from a NCDENR climate change 
symposium that included potential effects to the North Carolina coast 
and noted that habitat for the Carolina DPS is almost exclusively in 
this area. The presentation discussed threats of sea level rise, 
increasing storms, and resultant property protection activities, such 
as beach renourishment and installation of hard structures. The 
presentation stated there will be detrimental effects to sounds, 
rivers, and estuaries utilized by the Carolina DPS. In contrast, a 
commenter stated that even with gradual climate change and warming, it 
is likely that Atlantic sturgeon populations will continue to increase 
over most of their range, as the species has survived more significant 
climate and temperature regimes in its evolutionary past. However, the 
commenter acknowledged that genetic diversity of the species may be 
important to assure its survival.

[[Page 5946]]

Several commenters cautioned that climate change models do not provide 
information appropriate for making management decisions regarding 
Atlantic sturgeon. One commenter cautioned against using the most 
extreme scenarios modeled by the International Panel on Climate Change 
(IPCC) and also noted that climate change may negatively impact species 
in one area, but benefit the species in others, and both positive and 
negative impacts should be considered. Two commenters noted that the 
proposed listing rule incorrectly stated the two Southeast DPSs are in 
a region the IPCC predicts will experience decreases in precipitation, 
which could exacerbate low oxygen, and that increases in precipitation 
are actually predicted.
    Response: Additional information provided by commenters on the 
threats posed by climate change to Atlantic sturgeon and their habitat 
is consistent with our finding that it poses a significant threat to 
the Carolina and South Atlantic DPSs. We agree that additional research 
and monitoring of impacts and synergistic effects on Atlantic sturgeon 
are necessary. As we noted in the proposed listing rule, we are 
particularly concerned about the exacerbation through climate change of 
existing water quality issues and increasing water demands due to human 
population increases in the Southeast. While Atlantic sturgeon may have 
experienced different climate and temperature regimes over their 
evolutionary history, they have not had to persist with the combination 
of threats they face now, and we do not agree with the commenter that 
Atlantic sturgeon populations will increase without addressing these 
threats. Their populations were rapidly depleted by 1901 as a result of 
fishing. Even though directed fishing was abolished, Atlantic sturgeon 
continue to be taken as bycatch in various fisheries. Dams block access 
to habitat and affect downstream habitat quality, as does dredging. 
Water quantity and quality is affected by a variety of watershed 
activities. These threats are predicted to increase as population in 
the Southeast increases, and climate change is expected to further 
exacerbate water quality and quantity issues. We agree with the 
commenter that genetic diversity (and larger population sizes) will be 
necessary for Atlantic sturgeon to recover in the face of these 
increasing threats.
    We agree with the comment that the most extreme scenarios modeled 
by the IPCC are not appropriate for making management decisions 
associated with our listing of the Carolina and South Atlantic DPSs. 
While the IPCC modeled many scenarios and reported results with varying 
degrees of certainty, we only reported the most conservative results, 
the scenarios that were ``very likely'' to occur and which the IPCC 
projected with ``high confidence.'' In addition, our discussion of 
climate change focused on the ways in which it was likely to exacerbate 
existing threats, which we do feel warranted consideration in our 
listing determination. We did not use the IPCC's most extreme climate 
change model scenarios to make predictions about potential future 
threats to Atlantic sturgeon or factor those scenarios into our 
proposed listing determination. While we agree in theory that climate 
change could have both positive and negative effects, our review of the 
IPCC information did not reveal any aspects of climate change that 
would have positive effects on the Carolina and South Atlantic DPSs in 
the Southeast and the comment did not include specific examples of 
positive effects for our consideration.
    We appreciate the commenters noting that we incorrectly stated the 
two Southeast DPSs are in a region that the IPCC predicts will 
experience decreases in precipitation, exacerbating low DO. Overall, 
the Southeast is predicted to experience increases in precipitation. 
However, evaporation is also predicted to increase with increasing 
temperatures and the net effect for the Southeast is predicted to be 
overall drying. Further, conservative seasonal predictions for the 
summer show either a slight increase in precipitation or a slight 
decrease. Decreased precipitation or even a slight increase, offset by 
increased summer temperatures and evaporation, would exacerbate low DO 
when temperatures are highest. As discussed in the proposed listing 
rule, Atlantic sturgeon are particularly vulnerable to low DO when 
combined with high temperatures. Also, overall decreased water 
availability due to increased temperature and longer periods of time 
between rainfall events is predicted for the Southeast, even though 
individual rainfall events are predicted to be more extreme, leading to 
the increased precipitation estimates. We have corrected this 
information in the section of the final rule that addresses climate 
change.

Comments on Bycatch

    Comment 46: Many comments were received from parties concerned 
about the impacts of Atlantic sturgeon bycatch in both commercial 
fisheries and scientific surveys, and several commenters provided 
suggested solutions. One commenter stated that over 1,000 Atlantic 
sturgeon are taken annually as bycatch. Another commenter cited Munro 
et al. (2007) that bycatch likely has more detrimental effects in 
habitats that are limited in area and where certain life stages of 
Atlantic sturgeon tend to congregate, such as early juvenile habitats 
in the estuarine transition zone and the subadult/adult habitat in the 
nearshore oceanic zone. The commenter also stated that protecting 
juvenile marine stage Atlantic sturgeon from bycatch mortality in 
aggregation areas is likely the key to restoring Atlantic sturgeon 
populations given that the intrinsic rate of population increase for 
long-lived species like Atlantic sturgeon is most sensitive to changes 
in juvenile survival. The commenter noted that while little direct 
mortality is reported for trawl fisheries, within aggregation areas it 
is not uncommon to catch ten or more Atlantic sturgeon in a single 20 
minute tow, and that with longer trawl times in commercial fisheries, 
fish released alive may die days after. A commenter was concerned that 
bycatch of Atlantic and shortnose sturgeon has been occurring, citing 
data from the Santee River. A comment was received recommending 
research to determine the impacts of bycatch and bycatch mortality on 
Atlantic sturgeon populations, identification of the spatial and 
temporal distribution of bycatch throughout the species range, and 
development of measures that could be implemented to reduce bycatch 
and/or bycatch mortality. Several commenters stated that NMFS has not 
taken adequate steps to reduce or stop the use of gillnets and other 
gears to protect sturgeon. Comments were received that the moratorium 
has not prevented bycatch, and gill nets should be banned in order to 
recover Atlantic sturgeon. One commenter asked if NMFS had solicited or 
received advice from commercial fishermen on limiting bycatch mortality 
in gillnets. Citing Dunton et al. (2010), a commenter stated that 
because previous Atlantic sturgeon management has not resulted in 
significant improvements to populations, recovery efforts should now 
focus on establishing marine reserves or implementing area closures to 
protect essential habitat and to reduce fishing mortality on juveniles 
(Collins et al., 2000). The commenter stated that the primary juvenile 
habitat and juvenile migrations are limited to narrow corridors in 
waters less than 20 meters deep and this is conducive to a seasonal or 
permanent closure to gillnet and trawl fisheries. The commenter

[[Page 5947]]

believed that by focusing immediate efforts on the protection of these 
hotspots and corridor pathways, bycatch mortality will be reduced 
effectively through protection of habitat. One commenter was concerned 
about mortality levels in scientific surveys and recommended that 
scientific sampling be banned in the Cape Fear River.
    Response: Additional information provided by commenters on the 
impacts of Atlantic sturgeon bycatch is consistent with our finding 
that it poses a significant threat to the Carolina and South Atlantic 
DPSs. As we continue to work to reduce Atlantic sturgeon bycatch, we 
will consider suggestions provided by commenters, such as the 
importance of protecting juvenile marine stage Atlantic sturgeon, 
identifying hotspots and migratory corridors, investigating the 
establishment of marine reserves or closed areas, and working with 
gillnet fisheries to reduce the level of Atlantic sturgeon bycatch. We 
do not feel that banning scientific sampling in the Cape Fear River 
would benefit Atlantic sturgeon, and we recently published ``A Protocol 
for Use of Shortnose, Atlantic, Gulf, and Green Sturgeons'' (Kahn and 
Mohead, 2010; available at http://www.nmfs.noaa.gov/pr/pdfs/species/kahn_mohead_2010.pdf) that can be followed to better ensure the 
safety of sturgeon during research, including during capture using 
gillnets. We will continue to work with our partners and stakeholders 
through our existing authorities to reduce or eliminate the effects of 
bycatch on Atlantic sturgeon.
    Comment 47: Several commenters questioned how listing Atlantic 
sturgeon will result in a greater reduction in bycatch than is already 
being realized by closing the commercial fishery for Atlantic sturgeon. 
A commenter stated that there has been a significant reduction in 
vessels and effort in the shad gillnet and shrimp trawling fisheries 
over the last 10 years. Other commenters listed a number of commercial 
fishery regulations (i.e., harvest seasons, gill net mesh size, and 
quantity restrictions), some associated with other fisheries (e.g., 
striped bass, American shad) that also reduce the potential for gill 
net interactions with Atlantic sturgeon. Commenters also noted 
significant reductions in pound net and haul seine use have occurred 
during recent decades in the Albemarle Sound area, further reducing 
potential interactions between sturgeon and commercial fisheries. Two 
North Carolina state agencies reported that out of more than 3,000,000 
yards of large and small mesh gill nets observed since 2001, overall 
bycatch mortality was 6 percent (with an annual range of 0 to 12 
percent), which is lower than the 13.8 percent estimated by the ASMFC 
and cited in the proposed listing rule. The agencies also reported that 
mortality in the Albemarle and Pamlico Sound IGNS had overall Atlantic 
sturgeon mortalities of 3 and 10 percent, respectively, and mortality 
in the Pamlico, Pungo, and Neuse Rivers IGNS was 12 percent. The 
agencies commented that mortalities were high in the Cape Fear River 
IGNS (35 percent), and that mortality was less than 13.8 percent in 
Cape Fear River and near shore Atlantic Ocean Fishery Independent 
Assessment Program. In reference to the 35 percent mortality in the 
Cape Fear IGNS, commenters (including NCDENR) said that these results 
cannot be extrapolated to commercial fisheries because of gear and 
seasonal restrictions in place for those fisheries that do not allow 
them to be operated in the same time, place, or with the same gear. 
These agencies also noted that bycatch has been documented for over 958 
tows conducted by commercial shrimp trawlers working in North Carolina 
with no Atlantic sturgeon reported and that no Atlantic sturgeon have 
been captured in the 528 blue crab trawl tows examined since 1990. They 
also stated that the White and Armstrong Fishery Resource Grant study 
(2000) conducted in the Albemarle Sound was used in the listing 
documents because of a high collection rate; however, targeting of 
Atlantic sturgeon may have occurred since the design of the study was 
to estimate survival of sturgeon captured in commercial flounder nets. 
White and Armstrong (2000) also noted no mortality of Atlantic sturgeon 
collected. GADNR commented that less than 10 fish per year were 
estimated to have been captured in the Altamaha River anchored gillnet 
fishery during a 3-year study. All fish were juveniles and no injury or 
mortality was documented. Georgia also noted the season for gillnetting 
shad occurs while adults are at sea and juveniles are in the lower 
parts of the estuary. Since the 2007 status review, which ranked 
bycatch as a moderate threat in the Altamaha, the State of Georgia 
commented that recent action by the Board of Natural Resources has 
prohibited the use of gillnets for shad fishing in a large portion of 
the Altamaha. Two commenters disagreed with the use of Stein et al. 
(2004) in relation to bycatch in the Southeast, stating that offshore 
fisheries with long soak times should not be used as a proxy for 
inshore fisheries, and though mixing of sturgeon populations occurs in 
marine areas, most of the fish captured as bycatch would be fish from 
northern DPSs. A comment was received that listing Atlantic sturgeon 
could require changes to gear design or fishery regulations for 
fisheries that encounter Atlantic sturgeon as bycatch, and that while 
bycatch mortality estimates are unknown for many species, they are 
believed to be low with the exception of sink gillnet fisheries with 
long soak times. One commenter suggested that the South Atlantic DPS 
was not subject to the same level of bycatch as the Carolina DPS.
    Response: Listing the Carolina and South Atlantic DPSs as 
endangered could result in a further reduction in fishing mortality, 
beyond the commercial harvest moratoria, if conservation measures 
implemented pursuant to the ESA lead to reductions in bycatch, for 
example through section 10 permits or section 7 biological opinions. 
While the moratoria on harvest and possession have greatly reduced the 
effects of fisheries on Atlantic sturgeon, fish from these DPSs are 
still being taken as bycatch in many fisheries. Once listed as 
endangered, bycatch of Atlantic sturgeon would be considered ``take'', 
defined in section 3 of the ESA as ``to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct.'' Section 7 consultation would be required for 
federally authorized fisheries that take Atlantic sturgeon as bycatch. 
During consultation, NMFS would evaluate the anticipated level of take 
associated with the fishery, evaluate whether it would jeopardize the 
continued existence of the species, and determine reasonable and 
prudent measures that would reduce the anticipated effects of the 
incidental take on the species. A section 10(a)(1)(B) permit would be 
required for fisheries authorized by states that result in Atlantic 
sturgeon bycatch. A section 10(a)(1)(B) would require the development 
of a conservation plan that details the impact to the species, the 
steps that will be taken to minimize and mitigate the impacts, 
alternative actions considered and why they were not implemented, and 
any other measures required by NMFS to benefit the species.
    Even with reductions in gillnet and trawl vessels and fishing 
effort, and the implementation of other seasonal and gear restrictions, 
there are still large numbers of participants in fisheries using these 
gears. Every year, NMFS publishes a list of commercial fisheries and 
classifies them into categories according to the level of interactions

[[Page 5948]]

with marine mammals. Based on the latest list, published on November 8, 
2010 (75 FR 68468), fisheries using gillnet and trawl gear and the 
number of participants in those fisheries in the range of the Carolina 
and South Atlantic DPSs include the following: Mid-Atlantic gillnet 
fishery, 5,495 participants; the North Carolina inshore gillnet 
fishery, 2,250 participants; the Southeast Atlantic gillnet fishery, 
779 participants; the Southeastern U.S. Atlantic shark gillnet fishery, 
30 participants; the Mid-Atlantic bottom trawl fishery, 1,182 
participants; and, the Southeast U.S. Atlantic, Gulf of Mexico shrimp 
trawl fishery, 4,950 participants (though this includes Gulf of Mexico 
participants). However, we note that the number of participants listed 
here is potentially an overestimate of the number of participants 
interacting with Atlantic sturgeon. For example, in the gillnet 
fisheries, the number of participants includes fishermen using non-sink 
gillnets, which have fewer interactions with Atlantic sturgeon. In 
addition, all fishery participants may not be operating at times or in 
areas where they are likely to encounter Atlantic sturgeon. Further, 
based on available bycatch data, which suggests sturgeon are primarily 
caught in waters less than 50 meters deep, commercial and recreational 
fisheries using trawl and gillnet gear in waters greater than 50 meters 
deep may not have Atlantic sturgeon bycatch. Estimates for Atlantic 
sturgeon bycatch in these fisheries is largely unavailable, as bycatch 
is underreported in state waters and there is limited observer coverage 
in fisheries potentially capturing Atlantic sturgeon in the South 
Atlantic (North Carolina to Florida) Federal waters.
    We have added information on bycatch provided by North Carolina and 
Georgia to section ``B. Overtutilization for Commercial, Recreational, 
Scientific, or Educational Purposes'' of the final listing 
determination. Regarding bycatch data supplied by the State of North 
Carolina, the lack of recorded Atlantic sturgeon bycatch in commercial 
shrimp trawls and blue crab trawls in North Carolina is consistent with 
information presented in the proposed listing rule that trawl gear is 
not believed to be a significant threat to Atlantic sturgeon. Data 
reported for the Albemarle and Pamlico Sound IGNS, as well as IGNS in 
the Pamlico, Pungo, Neuse, and Cape Fear Rivers, show overall (i.e., 
mortality over all survey years combined) Atlantic sturgeon capture 
mortality in gillnets ranging from 3 to 35 percent. With the exception 
of the highest morality rate, which was observed in the Cape Fear River 
IGNS, North Carolina commented that all of the observed mortality rates 
were less than the 13.8 mortality cited in the proposed listing rule, 
but that the majority of the results cannot be extrapolated to 
commercial fisheries due to gear and seasonal harvest restrictions 
under which they operate. Based on the data supplied by the state, 
capture mortality of Atlantic sturgeon varied greatly by year, by 
month, and by the gillnet mesh size used during the survey. For 
instance, mortality during individual survey years in the Albemarle 
Sound IGNS ranged from 0 to 19 percent during 1990 to 2009. Mortality 
by month ranged from 0 to 7 percent, with the highest mortalities 
recorded in April (3 percent), May (7 percent), and November (5 
percent). Mortality ranged from 0 to 100 percent in mesh sizes ranging 
from 2.5- to 10-inch stretched mesh (ISM), with fairly consistent 
levels: 2 to 4 percent for mesh sizes 2.5 to 5.5 ISM, 9 percent for 6.5 
ISM, and 100 for 10 ISM (representing 1 Atlantic sturgeon). Similar 
variability was seen in the Pamlico Sound IGNS data. During 2001 to 
2008, 0 to 17 percent mortality was observed in the Pamlico Sound IGNS, 
with 100 percent in 2009, based on 1 Atlantic sturgeon. Mortality 
ranged from 0 to 25 percent by month, with peak mortalities occurring 
in June (25 percent), August (17 percent), and November (17 percent). 
The Pamlico Sound IGNS used mesh sizes ranging from 3 to 6.5 ISM. 
Mortality by mesh size ranged from 0 to 25 percent, with the highest 
mortalities observed in the 3 ISM (25 percent), 3.5 ISM (20 percent), 
and 6.5 ISM (20 percent). While the State of North Carolina commented 
that the IGNS data should not be extrapolated to estimate a mortality 
rate for commercial fisheries, it does show that time of year and gear 
type factor heavily into Atlantic sturgeon bycatch mortality. As stated 
by North Carolina, as well as in the proposed listing rule, other 
factors, such as gillnet soak time, affect mortality rates. Overall 
mortality rates in all North Carolina surveys (with the exception of 
the Cape Fear River IGNS) may be below the 13.8 percent estimate 
reported in the proposed listing rule; however, mortality rates during 
individual survey years, during certain survey months, and for specific 
gillnet mesh sizes used often exceeded 13.8 percent. While North 
Carolina provided fishery-dependent survey data from their observer 
program, observer coverage in fisheries potentially capturing Atlantic 
sturgeon is very limited for the remainder of the Southeast range 
occupied by the Carolina and South Atlantic DPSs. High levels of 
bycatch underreporting are suspected. Further, even if bycatch 
mortality is lower than the 13.8 percent estimate reported in the 
proposed listing rule, total population abundances for the Carolina and 
South Atlantic DPSs are not available and we do not know what portion 
of the Carolina and South Atlantic DPSs are subject to being taken as 
bycatch. As cited in the proposed listing rule, Boreman (1997) 
calculated a sustainable fishing (bycatch) mortality rate of 5 percent 
per year for adult Atlantic sturgeon, indicating they can only tolerate 
relatively low levels of bycatch mortality.
    Fisheries known to incidentally catch Atlantic sturgeon occur 
throughout the marine range of the species and in some riverine waters 
as well. Because Atlantic sturgeon mix extensively in marine waters and 
may access multiple river systems, they are subject to being caught in 
multiple fisheries throughout their range. Atlantic sturgeon taken as 
bycatch may suffer immediate mortality. In addition, stress or injury 
to Atlantic sturgeon taken as bycatch but released alive may result in 
increased susceptibility to other threats, such as poor water quality 
(e.g., exposure to toxins and low DO). This may result in reduced 
ability to perform major life functions, such as foraging and spawning, 
or may even result in post-capture mortality. Several of the river 
populations in the South Atlantic DPS (e.g., the Ogeechee and the 
Satilla) are stressed to the degree that any level of bycatch could 
have an adverse impact on the status of the DPS (ASSRT, 2007). 
Therefore, the information supplied by the State of North Carolina does 
not provide a basis for revising our evaluation of the threat of 
bycatch to Atlantic sturgeon populations or our determination that the 
Carolina and South Atlantic DPSs warrant listing as endangered. For the 
same reasons, the information supplied by the State of Georgia does not 
provide a basis for revising our evaluation of the threat of bycatch to 
Atlantic sturgeon. The state documented less than 10 fish per year 
taken as bycatch in the Altamaha River gillnet fishery, with no 
observed mortality during a 3-year study. Georgia also commented that 
the shad gillnet season occurs while adults are at sea and juveniles 
are in the lower part of the estuary and that the state now prohibits 
shad gillnetting in a large portion of the Altamaha. However, the 
Altamaha River has the largest and healthiest population of Atlantic 
sturgeon in the Southeast and bycatch occurring in systems with 
smaller, more greatly stressed

[[Page 5949]]

populations (such as the Ogeechee and Satilla; ASSRT, 2007) may have 
adverse impacts. We commend the state for their efforts in reducing the 
threat of bycatch in the Altamaha River, but we believe bycatch still 
represents a significant threat to the Carolina and South Atlantic DPSs 
of Atlantic sturgeon. The bycatch information for Atlantic sturgeon in 
the Carolina and South Atlantic DPSs provided by North Carolina and 
Georgia, when considered as part of our listing determination, does not 
change our determination that the two DPSs warrant listing as 
endangered.
    The White and Armstrong (2000) study was not considered in the 
proposed listing rule for the reason suggested by the commenter, i.e., 
due to the high collection rate of Atlantic sturgeon. We cited this 
study as one of the only fishery-dependent bycatch surveys of Atlantic 
sturgeon from either the Carolina or South Atlantic DPSs available to 
us. Contrary to the commenters' assertion that targeting of Atlantic 
sturgeon may have occurred, the research publication states in the 
``Methods'' section that ``southern flounder (not Atlantic sturgeon) 
were the target species, and the incidence of Atlantic sturgeon 
captures in the catch was expected to be representative of normal 
bycatch rates.'' The publication also stated that ``survival rates were 
inestimable, the apparently healthy condition of incidentally captured 
Atlantic sturgeon is consistent with low release mortality.''
    While commenters disagreed with our use of offshore fisheries data 
in relation to bycatch in the Southeast (e.g., Stein et al., 2004; 
ASMFC, 2007), we used the best data available to us in the proposed 
listing rule and clarified its utility. We noted in the proposed 
listing rule that any estimate of bycatch from the NMFS ocean observer 
dataset will be an underestimate, because bycatch is underreported in 
state waters and there is no observer coverage in the South Atlantic 
(North Carolina to Florida) Federal waters. We are updating information 
in this section of the final rule to reflect that there is limited 
observer coverage in Federal waters in the Southeast for gear types 
that potentially capture Atlantic sturgeon. The shark drift gillnet 
program, which operates primarily off the southern Atlantic Coast of 
Florida and North Carolina, observes a relatively small fishery (25-30 
vessels) targeting coastal shark species, as well as king and Spanish 
mackerel, little tunny, bluefish, and Atlantic croaker. There is also 
an observer program for the Southeastern shrimp trawl fishery, which 
covers approximately 1 percent of the fishery in the South Atlantic. 
This information does not change our conclusion that bycatch is 
underreported in state and Federal waters. In addition to immediate 
mortality, bycatch mortality estimates do not account for post-capture 
mortality and may further underestimate the mortality rate in sink 
gillnets in the Carolina and South Atlantic DPSs because bycatch 
survival is greater in colder water temperatures of the north compared 
to warmer southern waters occupied by these DPSs.

Comments on Disease and Predation

    Comment 48: One commenter stated that the need and ability to 
regulate the aquarium trade should not have been discounted in the 
proposed listing rule. The commenter believed importation of non-native 
sturgeon is a greater threat to native sturgeon than any other factor 
because non-natives potentially out-compete native fish and introduce 
disease.
    Response: We agree that the ability to regulate the aquarium trade 
should not have been discounted in the proposed listing rule, and we 
are removing that text in the final rule. However, we do not have 
information that suggests the aquarium trade is a current threat to 
Atlantic sturgeon. We disagree that the importation of non-native 
sturgeon is a greater threat to native sturgeon than any other threat. 
We included information in the proposed listing rule that there were 
only five known Atlantic sturgeon commercial aquaculture operations in 
the Southeast, one in North Carolina and four in Florida. These 
operations all cultured Atlantic sturgeon originating from Canadian 
stock, with the exception of the North Carolina operation that acquired 
Siberian sturgeon (A. baerii) in 2006 after obtaining an addendum to 
their permit from the ASMFC. Additionally, we obtained information on 
the culture of other sturgeon species. Commercial U.S. culture of meat 
and caviar is currently taking place in three states: California, 
Idaho, and Florida (Monterey Bay Aquarium, 2007). Four facilities 
(Evans Farm, Mote Marine Laboratory, Rokaviar, and Sturgeon AquaFarms, 
LLC) in Florida, the only state in the range of Atlantic sturgeon 
culturing non-native species, conduct tank culture of the following 
species: Siberian sturgeon (A. baerii), Russian sturgeon (A. 
gueldenstaedti), Stellate sturgeon (A. stellatus), Sterlet sturgeon (A. 
ruthenus), Adriatic sturgeon (A. naccarii), beluga sturgeon (Huso 
huso), and the hybrid Bester sturgeon (H. huso x A. rutheni)(M. 
Berrigan, FDACS, pers. comm.). The nature of current containment 
practices and the reported record of total escape prevention for the 
Florida facilities that presently culture non-native sturgeons suggest 
currently low exposure for wild sturgeon stocks to the ecological risks 
of farmed fish escapes (Monterey Bay Aquarium, 2007). We acknowledged 
in the proposed listing rule that introduction of non-native species 
could impact native sturgeon populations. However, we did not believe 
that this was a significant threat based on the very low occurrence of 
non-native Atlantic sturgeon culture operations and the fact that stock 
enhancement programs follow culture and stocking protocols approved by 
the ASMFC, which includes, ``if non-native or hybrid sturgeon are 
permitted within a state, they should be restricted to culture 
operations where escapement and reproduction can and will be 
controlled.'' We also noted that mechanisms are in place at all 
facilities to prevent escapement of sturgeon; facilities are all land 
based, and most are not located in close proximity to any Atlantic 
sturgeon rivers. All of the facilities in Florida are periodically 
screened for disease by University of Florida Institute for Food and 
Agricultural Science (IFAS) veterinarian. None have reported diseases. 
All facilities are above the 100-year flood plain and have zero 
discharge.
    We received information during the public comment period that 
indicates a further reduction in the potential threat of non-native 
sturgeon to the Carolina and South Atlantic DPSs. The Florida 
Department of Agriculture and Commerce (FDACS), which certifies 
aquaculture facilities and inspects those facilities twice a year for 
compliance, informed us that only one commercial facility with Atlantic 
sturgeon is currently operating in Florida, and they only have one 
surviving fish. All other Atlantic sturgeon held in Florida aquaculture 
facilities died in captivity. Additional information supplied by FDACS 
on Florida aquaculture facilities is included in our response to 
comment 53.

Comments on the Inadequacy of Existing Regulatory Mechanisms

    Comment 49: Several commenters provided us with additional examples 
of the inadequacy of regulatory mechanisms. One commenter believed the 
ASMFC's failure to end the harvest of overfished stocks (e.g., winter 
flounder and weakfish) and North Carolina's request for an exemption to 
the law that fishery management plans have a 50 percent probability of 
recovering depleted stocks exemplify

[[Page 5950]]

inadequacies of existing regulatory mechanisms to protect species and 
highlight the need for ESA listing. Several commenters noted the lack 
of permitting programs in southeastern states for water withdrawals, 
including interbasin transfers, and the lack of regulation of instream 
flows. One commenter noted that while there is a blanket prohibition 
against water transfers into metro Atlanta, adjacent counties are 
joining the district where Atlanta is incorporated in order to avoid 
the prohibition. Another commenter stated that North Carolina coastal 
counties currently seeking interbasin transfers have been exempted from 
2007 amendments regulating interbasin transfer and the North Carolina 
Department of Water Quality is seeking to create regulatory changes to 
the current buffer rules. The commenter also stated that, for the 
second year in a row, North Carolina passed legislation allowing any 
existing permit or finding to extend until after 2011 without having to 
reapply or renew as a way to mitigate the economic downturn. The 
extension is applicable to several types of permits and applications 
that could affect the Carolina DPS, including: Findings of no 
significant impact; approvals of an erosion and sedimentation control 
plan; permits for major developments or minor developments under the 
State's Coastal Area Management Act; water or wastewater permits; 
building permits; stream origination certifications; water quality 
certifications; air quality permits; and city and county site specific 
development plans. A comment was also received regarding Senate Bill 
778, which became law in North Carolina in August of 2010. The bill was 
drafted as a response to litigation regarding the proposed Titan Cement 
plant and created a loophole that any project such as Titan, which may 
have a significant environmental impact, can bypass the State 
Environmental Policy Act (SEPA) by structuring a contract on the basis 
of incentives. While the legislation does not retroactively exempt 
Titan Cement from SEPA, it ensures that a roadmap exists for any 
similar projects in the future to avoid the environmental review 
process established in SEPA.
    Response: In the proposed listing rule, we concluded that the 
inadequacy of regulatory mechanisms to fully address the threats of 
bycatch and habitat modification are contributing to the endangered 
status of the Carolina and South Atlantic DPSs of Atlantic sturgeon. 
The information provided by these commenters supports this conclusion. 
We will continue to investigate these issues and ways to ameliorate any 
effects they are having on Atlantic sturgeon.
    Comment 50: Several commenters disagreed with NMFS' finding in the 
proposed listing rule that existing regulatory mechanisms protecting 
Atlantic sturgeon and their habitat are inadequate. Numerous commenters 
believed the proposed listing rule is unnecessary because directed 
fishing and retention of Atlantic sturgeon has been prohibited by the 
moratoria implemented by the ASMFC and NMFS, as well as various 
prohibitions enacted by individual states. A commenter noted that South 
Carolina and North Carolina initiated moratoria on harvest and 
possession of Atlantic sturgeon in 1985 and 1991, respectively. Another 
commenter noted that special concern designations have been given to 
Atlantic sturgeon by the states of Virginia and Florida. Many 
commenters believe the prohibitions are working and that no listing 
action should be taken until the moratoria have had sufficient time to 
work. A commenter stated that protections already in place for co-
occurring endangered species are sufficient to protect Atlantic 
sturgeon and their habitat. Comments were received that NMFS did not 
thoroughly consider the benefits of existing regulatory mechanisms 
addressing bycatch and activities affecting Atlantic sturgeon habitat 
(e.g., regulations associated with construction, demolition, and 
dredging), and that existing regulations should be used to protect 
Atlantic sturgeon populations. The State of North Carolina commented 
that the North Carolina Coastal Habitat Protection Plan (NCCHPP) and 
moratoria on construction, dredging, and other habitat altering 
activities are already managing habitat issues, observer programs are 
expanding to include more fisheries, gear configurations and 
regulations have been updated to reduce bycatch and limit interactions 
with protected species, and research is being funded that will allow 
North Carolina and other states to gain a better understanding of the 
migratory patterns, spawning areas, and distribution of Atlantic 
sturgeon within the next few years. The NCCHPP was adopted in 2005 and 
its stated goals are: (1) Improving effectiveness of existing rules and 
programs protecting coastal fish habitats; (2) identifying, 
designating, and protecting strategic habitat areas (SHAs); (3) 
enhancing habitat and protecting it from physical impacts; and, (4) 
enhancing and protecting water quality. The North Carolina Marine 
Fisheries Commission (NCMFC) approved SHAs for Region 1 in North 
Carolina in January 2009, and is currently evaluating SHAs for other 
regions in North Carolina. According to the commenter, SHAs represent 
priority habitat areas for protection due to their exceptional 
condition or imminent threat to their ecological functions supporting 
estuarine and coastal fish and shellfish species and will be 
incorporated into conservation and restoration efforts. One SHA 
(Bellows Bay to Knotts Island Bay) was identified in part due to the 
nearshore ocean areas that are important for Atlantic sturgeon and 
striped bass and another SHA (Chowan and Roanoke Rivers and western 
Albemarle Sound) may include one of the few Atlantic sturgeon spawning 
habitats in North Carolina. The State also commented that the North 
Carolina Department of Marine Fisheries (NCDMF) provides input to 
federal and state regulatory agencies of the location of habitats used 
by Atlantic sturgeon. NCDMF and the North Carolina Wildlife Resources 
Commission have designated Anadromous Fish Spawning Areas (AFSA) 
through rules for their respective jurisdictions.
    Response: Though moratoria on harvest and possession of Atlantic 
sturgeon were enacted by the ASMFC, NMFS, and several states, 
populations have not rebounded and the moratoria do not control 
bycatch. We believe continued bycatch of Atlantic sturgeon in 
commercial fisheries has an ongoing impact upon the Carolina and South 
Atlantic DPSs that is not adequately addressed through existing 
regulatory mechanisms and is contributing to their endangered status. 
Because Atlantic sturgeon mix extensively in marine waters and may 
access multiple river systems, they are subject to being caught in 
multiple fisheries throughout their range. Poor water quality also 
continues to result in adverse effects to Atlantic sturgeon even with 
existing controls on some pollution sources and water withdrawal, and 
dams continue to curtail and modify habitat, even given the provisions 
for establishing fishways under the Federal Power Act.
    As noted in the comments, Florida has designated the Atlantic 
sturgeon as a species of special concern. This designation stipulates 
that no person shall take, possess, transport, or sell any species of 
special concern without a permit. The comments also noted Atlantic 
sturgeon was designated as a species of special concern by Virginia, 
which is described as a ``watchlist'' of wildlife species with no other 
regulatory or statutory requirements. Currently, the state's Wildlife 
Action Plan identifies

[[Page 5951]]

Virginia's Species of Greatest Conservation Need (SGCN) and has made 
the ``special concern'' designation obsolete. The SGCN also has no 
regulatory requirements, but requires that Comprehensive Wildlife 
Conservation Strategies be developed that include 8 essential elements, 
including key information on distribution, abundance, threats, 
descriptions of conservation actions, and plans for species monitoring. 
While states should be commended for recognizing the need for 
conservation of Atlantic sturgeon, these designations are not enough to 
alleviate the threats to the Carolina and South Atlantic DPSs of 
Atlantic sturgeon or change our evaluation of the species as meeting 
the definition of endangered from section 3 of the ESA.
    While there are a variety of other Federal, state, and local laws 
and programs (e.g., regulations governing construction activities and 
gear configurations that reduce bycatch) that benefit Atlantic 
sturgeon, we believe that threats from habitat modification and bycatch 
are not sufficiently managed through current regulatory mechanisms in 
place. For instance, seasonal restrictions governing construction and 
dredging in North Carolina may benefit Atlantic sturgeon during 
critical time periods, as stated by the commenter, but construction and 
dredging during other times of the year can still impact Atlantic 
sturgeon and their habitat. Required gear configurations may reduce 
Atlantic sturgeon bycatch, but bycatch still occurs. Further, the lack 
of bycatch data does not allow us to evaluate the degree to which 
bycatch is potentially reduced by these measures. We reviewed the 
information provided by the State of North Carolina on the NCCHPP, 
SHAs, and AFSAs, as well as additional information on these programs on 
NCDENR's Web sites. While these programs have excellent goals of 
increasing enforcement of existing regulations, identifying and 
protecting habitat important to the species, and monitoring these 
habitats, many of these actions are still in the early stages and it is 
not clear exactly what protections will be given to areas designated as 
SHAs or AFSAs. We are also including an evaluation of these programs in 
the section of the final listing rule evaluating current protective 
efforts.

Comments on Other Natural and Manmade Factors

    Comment 51: The ASMFC commented that states and jurisdictions where 
ship strikes are an issue are currently monitoring and working to 
minimize these impacts. Another commenter was concerned that if ship 
strikes increase, regulation may be required, and the commenter 
requested clarification on the ``large number of mortalities'' cited in 
the proposed listing rule. The commenter suggested that if ship strikes 
have increased over time, it could indicate the population of Atlantic 
sturgeon in these areas has increased.
    Response: The ASMFC's comment on monitoring of ship strikes on 
Atlantic sturgeon is noted. In response to the commenter requesting 
clarification on ``a large number of mortalities'' cited in the 
proposed listing rule, the full statement on page 61924 is ``a large 
number of mortalities observed in these rivers from potential ship 
strikes have been of large adult Atlantic sturgeon.'' The sentence is 
not indicating that there are a large number of ship strike 
mortalities, but rather a large percentage of the mortalities resulting 
from ship strikes are large adult fish. On the following page (61925), 
we quantified ship strikes in the one river in the Southeast where they 
have been documented (``one ship strike per 5 years is reported for the 
Cape Fear River within the Carolina DPS.''). This section of the 
proposed listing rule further noted that, while it is possible that 
ship strikes may have occurred and have gone unreported or unobserved, 
the lack of large ship traffic on narrow waterways within the range of 
the DPS may limit potential interactions. We concurred with the ASSRT's 
assessment of the threat from ship strikes as low for both the Carolina 
and South Atlantic DPS and concluded that it was not contributing to 
the endangered status of the DPSs. An increase in ship strikes on 
Atlantic sturgeon could result from a variety of factors, including an 
increase in Atlantic sturgeon populations, an increase in shipping 
traffic, changes to shipping channel characteristics (e.g., channel 
shallowing or narrowing), and transit of larger vessels. If NMFS 
receives new data showing that ship strikes pose a significant threat 
to the Carolina or South Atlantic DPS, we will work with stakeholders, 
including the shipping industry, to evaluate the best options for 
minimizing impacts to Atlantic sturgeon without unduly hampering 
shipping activities.
    Comment 52: A commenter agreed with concerns expressed in the 
proposed listing rule about the effects of aquaculture and stock 
enhancement on Atlantic sturgeon populations from disease, escape, and 
out-breeding depression, but believes these can be minimized and that a 
responsible stocking program using native broodstock is the best option 
for reestablishing a population in extirpated systems. The commenter 
stated that there is evident disdain by the ASSRT for stocking and 
enhancement activities based on the discussion of the dangers of 
stocking and categorizing the release of cultured fish as a section 9 
violation. The commenter believed listing would result in currently 
captive fish being destroyed rather than used for commercial or 
stocking purposes and would provide no incentive for the private sector 
to maintain the fish they currently have. The commenter also believed 
aquaculture and stock enhancement afford research opportunities and 
would afford a level of protection for wild stocks from poaching by 
providing a legal product to the market. FDACS, which certifies 
aquaculture facilities and inspects those facilities twice a year for 
compliance, commented on the proposed listing rule. They stated that 
NOAA participated in a cultured sturgeon risk analysis in 2000 that 
governs Florida sturgeon farming and that the disposition of the 
Atlantic sturgeon in aquaculture facilities is known, contrary to 
information reported in the proposed listing rule. FDACS indicated that 
captive Atlantic sturgeon in Florida are from a genetically distinct 
population that is not being considered for listing and were cultured 
in waters outside those being defined as within the South Atlantic DPS. 
The commenter stated that sturgeon products sold by Florida farms 
possess an Aquaculture Certificate of Registration and are exempt from 
the provisions of the ESA.
    Response: Both the proposed listing rule and the 2007 status review 
report presented an objective discussion of stocking and enhancement 
and did not reflect disdain on the part of the agency or the ASSRT for 
those activities. Both documents state that artificial propagation has 
the potential to be a tool for recovery of the species, as well as a 
threat. While collecting, handling, releasing, and harming captive 
Atlantic sturgeon were identified in the proposed listing rule as 
potential violations of the take prohibitions in section 9 of the ESA, 
we also stated that permits are available to lawfully conduct these 
activities for purposes of scientific research or to enhance the 
propagation of the or survival of Atlantic sturgeon DPSs. As stated in 
our response to other comments above, we must base listing 
determinations solely on the best scientific and commercial data 
available on the status of and threats to the species. We cannot 
consider the potential economic consequences (or lack of economic

[[Page 5952]]

incentives) to entities currently in possession of captive Atlantic 
sturgeon. However, in our response to comment 35, we describe the types 
of authorizations available to conduct activities such as artificial 
propagation in full compliance with the ESA and we encourage the 
affected parties to utilize this option.
    In response to comments from FDACS that the disposition of all 
Atlantic sturgeon acquired by Florida aquaculture facilities is known, 
we contacted FDACS to confirm current holdings. FDACS informed us that 
Evan's Fish Farm is currently the only facility in Florida with 
Atlantic sturgeon, and they only have one surviving fish. All other 
Atlantic sturgeon held in Florida aquaculture facilities died in 
captivity. We are updating the final listing rule with this 
information. As stated in the proposed listing rule and confirmed by 
the commenter, Atlantic sturgeon in possession of Florida aquaculture 
facilities originated from Canadian populations and not from any of the 
U.S. DPSs currently being proposed for listing under the ESA. 
Therefore, the remaining Atlantic sturgeon held by Evan's Fish Farm is 
not affected by the listing.
    Comment 53: A commenter provided information on impingement of 
juvenile Atlantic sturgeon at the Brunswick Nuclear Power Plant on the 
lower Cape Fear River. Plant modifications were implemented in the 
early 1980s as part of the NPDES permit. An average of 55 juvenile 
Atlantic sturgeon were impinged per year from 1975 to 1981. A fish 
diversion was installed in 1981 and a fish return system was installed 
in 1983. Only 2 impinged juveniles were observed between 1982 and 2010 
and were returned alive to the river.
    Response: We appreciate the information provided by the commenter 
and we added this information to the section of the final listing rule 
on impingement and entrainment. As we noted in the proposed listing 
rule, the withdrawal of water from rivers that support Atlantic 
sturgeon populations was considered to pose a potential threat of 
impingement and entrainment; however, data are lacking to determine the 
overall impact of this threat on sturgeon populations, as impacts are 
dependent on a variety of factors (e.g., the species, time of year, 
location of the intake structure, and strength of the intake current). 
Prior to receiving the above information, we only had one survey 
showing the direct impact of water withdrawal on Atlantic sturgeon in 
the Southeast. As stated in the proposed listing rule, the Edwin I. 
Hatch Nuclear power plant, located 11 miles north of Baxley, Georgia, 
withdraws water from, and discharges to, the Altamaha River. Pre-
operational drift surveys were conducted and only two Acipenser larvae 
were collected. Entrainment samples at the plant were collected for the 
years 1975, 1976, and 1980, and no Acipenser species were observed in 
the samples (Sumner, 2004). We concurred with the ASSRT's assessment of 
the threat from impingement and entrainment as low for both the 
Carolina and South Atlantic DPS and concluded that it was not 
contributing to the endangered status of the DPSs. The information 
provided by the commenter that two juvenile Atlantic sturgeon were 
impinged at the Brunswick Nuclear Power Plant between 1982 and 2010, 
and both were returned to the Cape Fear River alive, does not change 
our conclusion.

Comment on Recovery

    Comment 54: A comment was received that a recovery plan for 
Atlantic sturgeon should place a high priority on research and 
gathering sufficient information to define what it means to both 
jeopardize and recover Atlantic sturgeon and define the allowable take 
authorized by the ESA. Ecosystem dynamics and level of anthropogenic 
activity vary in each river, and recovery tasks should be prioritized 
based on research into potential impacts of the activities on Atlantic 
sturgeon. The commenter recommended an accelerated and concentrated 
research effort prior to development of a targeted restoration 
strategy.
    Response: Section 4(f) of the ESA directs NMFS to develop and 
implement recovery plans for threatened and endangered species, unless 
such a plan would not promote conservation of the species. According to 
the statute, these plans must incorporate, at a minimum: (1) A 
description of site-specific management actions necessary to achieve 
recovery of the species, (2) objective, measurable criteria which, when 
met, would result in a determination that the species be removed from 
the list; and (3) estimates of the time and costs required to achieve 
the plan's goal. NMFS agrees with the commenter that research to fill 
knowledge gaps in areas important to recovery should be a priority. 
NMFS is currently undertaking and funding a variety of projects, 
including research on abundance and to determine movement and habitat 
utilization by Atlantic sturgeon. In addition, through years of section 
7 consultations on shortnose sturgeon, which share many of the same 
rivers as Atlantic sturgeon, we have much information on anthropogenic 
activities occurring in those rivers. We will continue to seek 
information on Atlantic sturgeon, their habitat, and the threats they 
are facing and use this information to prioritize recovery actions. 
Once a draft recovery plan is developed, we will submit it for public 
review and comment before finalizing it.

Comments on Critical Habitat

    Comment 55: A commenter recommended that confirmed and potential 
nursery and spawning locations in each river should be designated as 
critical habitat for Atlantic sturgeon, as well as known marine 
migration corridors and aggregation areas. The commenter provided 
information and literature citations identifying some of these areas 
and the habitat characteristics potentially preferred by Atlantic 
sturgeon.
    Response: We appreciate the information provided by the commenter. 
Section 4(a)(3)(A) of the ESA requires that critical habitat be 
designated, to the maximum extent prudent and determinable, 
concurrently with a determination that a species is endangered or 
threatened. When such a designation is not determinable at the time of 
final listing of a species, section 4(b)(6)(C)(ii) of the ESA provides 
for an additional year to promulgate a critical habitat designation. We 
have concluded that critical habitat for the Carolina and South 
Atlantic DPSs is not determinable at this time. Through the status 
review and public comment process on the proposed listing rule, we have 
begun to collect information on the location of biological and physical 
and biological features essential to the conservation of the two DPSs. 
Throughout the next year, we intend to gather and review current and 
ongoing studies on the habitat use and requirements of Atlantic 
sturgeon from the two DPSs in the Southeast, including an ongoing study 
with USGS to compare sturgeon location data with a variety of habitat 
parameters and a study to map riverine habitat in four Georgia rivers 
known to support the South Atlantic DPS funded through NMFS Section 6 
program. We will also gather and analyze information on the benefits 
and impacts of a critical habitat designation.
    Comment 56: A comment stated that critical habitat for the South 
Atlantic DPS should be accurately defined. The commenter noted that 
Figure 2 in the proposed listing rule depicts habitat well above the 
fall line and stated that accurate delineation of critical habitat is 
necessary so undue compliance costs

[[Page 5953]]

are not placed on communities outside the actual habitat utilized by 
the DPS.
    Response: NMFS has not yet designated critical habitat for the 
Carolina and South Atlantic DPSs. The shaded areas in Figure 2 in the 
proposed listing rule encompass the rivers where Atlantic sturgeon 
belonging to the Carolina and South Atlantic DPSs may occur. The shaded 
areas were made sufficiently large so that no rivers or tributaries 
potentially inhabited by fish from the Carolina and South Atlantic DPSs 
were excluded. The shaded areas were meant to be a visual reference, 
rather than a definitive indication of the presence of Atlantic 
sturgeon, though any sturgeon encountered in a location within a shaded 
area would be from a DPS being listed through this final rule (as all 
Atlantic sturgeon on the East Coast of the U.S. are from a DPS 
currently proposed for listing as threatened or endangered). We have 
modified Figure 2, now Figures 2 and 3, to more accurately reflect the 
text descriptions of the Carolina and South Atlantic DPSs. Because 
Atlantic sturgeon are included in a DPS based on the watershed in which 
they spawn or were spawned, we have redrawn Figures 2 and 3 using HUC 8 
watershed boundaries obtained from USGS. Because this is only a visual 
representation of where fish from the Carolina and South Atlantic DPSs 
may be encountered, it does not change the entities being listed and 
does not indicate that critical habitat may be designated in a certain 
location. We agree that critical habitat for the Carolina and South 
Atlantic DPSs should be accurately defined at the time of designation 
to ensure compliance with the ESA's mandate at section 7(a)(2) that any 
activity authorized, funded, or carried out by a Federal agency is not 
likely to result in the destruction or adverse modification of critical 
habitat. Though activities occurring outside designated critical 
habitat can still affect critical habitat in some instances, NMFS does 
not have the authority or the intent to place compliance burdens on 
entities engaged in activities that would not adversely affect Atlantic 
sturgeon or their designated critical habitat.
    Comment 57: A commenter stated that NMFS has not designated 
critical habitat for the endangered shortnose sturgeon, which would 
improve habitat protection for the Atlantic sturgeon due to the 
substantial overlap in habitat utilization between the two species. The 
commenter stated NMFS should meet the management objectives of the ESA 
for shortnose sturgeon before taking on the substantial administrative 
burden of a listing for Atlantic sturgeon and said that species with 
critical habitat designated are twice as likely to be recovered as 
species without critical habitat. Another commenter questioned why NOAA 
failed to identify Essential Fish Habitat (EFH) for Atlantic sturgeon 
to support the proposed listing rule and noted that EFH and Habitat 
Areas of Particular Concern (HAPCs) have not been designated for 
shortnose sturgeon either.
    Response: The shortnose sturgeon was listed as endangered on March 
11, 1967, under the Endangered Species Preservation Act of 1966, a 
predecessor to the Endangered Species Act of 1973. Shortnose sturgeon 
continued to meet the listing criteria for endangered under subsequent 
definitions specified in the 1969 Endangered Species Conservation Act 
and remained on the list with the inauguration of the ESA in 1973. NMFS 
later assumed jurisdiction for shortnose sturgeon under a 1974 
government reorganization plan (38 FR 41370). Because the shortnose 
sturgeon was listed prior to the amendments to the ESA that made 
critical habitat designations mandatory for newly listed species, NMFS 
is not required to designate critical habitat for the species 
(designation is discretionary). However, NMFS has undertaken a number 
of activities to protect shortnose sturgeon and their habitat, 
including publishing a recovery plan for the species (63 FR 69613; 
December 17, 1998), funding research on the species, and consulting 
with Federal agencies under section 7 of the ESA to ensure shortnose 
sturgeon are not jeopardized by activities that may harm the fish or 
their habitat. Some of these efforts also benefit Atlantic sturgeon, as 
noted in the proposed listing rule. However, NMFS cannot delay a 
listing determination or a critical habitat designation for Atlantic 
sturgeon until the recovery objectives for shortnose sturgeon are met. 
Because NMFS was petitioned to list the Atlantic sturgeon, we were 
required to evaluate the status of the species and the threats it is 
facing and make a finding on whether the petitioned action was 
warranted within 12 months, which resulted in our proposed listing rule 
determination of endangered for the Carolina and South Atlantic DPSs of 
Atlantic sturgeon. NMFS works with the regional fishery management 
councils to identify EFH and HAPCs for federally managed fishery 
species. Atlantic and shortnose sturgeon are not federally managed 
fishery species, therefore NMFS did not identify EFH or HAPCs for 
either species.

Comments on the Public Hearings

    Comment 58: A commenter asked if the ``limited advertising'' and 
one public hearing met the minimum statutory requirements for receiving 
public comments on the proposed listing rule, since it affects a large 
geographic area, numerous counties, cities, states, industries, etc. 
The commenter stated the meeting was not on the Southeast Region's or 
the Office of Protected Resources' Web site. The commenter noted that a 
legal notice was placed in the local newspaper, but he asked the paper 
to enlarge the notice and to also include a separate article about the 
public hearing.
    Response: The notice and public comment period on the proposed 
listing rule for the Carolina and South Atlantic DPSs of Atlantic 
sturgeon exceeded the requirements established in section 4(b)(5) of 
the ESA. The proposed listing rule established a 90-day comment period 
(October 6, 2010, through January 4, 2011), during which comments were 
accepted electronically via the Federal eRulemaking Portal (http://www.regulations.gov), as well as by mail, hand delivery, and facsimile. 
We extended the comment period an additional 30 days at the request of 
the public and accepted comments through February 4, 2011. In 
compliance with section 4(b)(5)(A)(ii), we sent over 200 letters with a 
complete copy of the proposed rule to each relevant state and county 
agency where the Carolina and South Atlantic DPS potentially occur, 
inviting them to comment on the proposed listing rule. Section 
4(b)(5)(E) of the ESA only requires that one public hearing be held on 
a proposed listing rule if it is requested by the public within 45 days 
after the date of the publication of the proposed listing rule in the 
Federal Register. Though the Southeast Region did not receive any 
requests for a public hearing, we elected to hold two public hearings, 
one each in the areas occupied by the Carolina and South Atlantic DPSs 
of Atlantic sturgeon. Hearings were held in Wilmington, North Carolina, 
on December 6, 2010, and Atlanta, Georgia, on December 7, 2010, to 
accept public comments. In addition to publishing a notice in the 
Federal Register (75 FR 69049; November, 10, 2010) announcing the 
hearings, a notice was placed in the legal section of a major newspaper 
in each of the five states occupied by the Carolina and South Atlantic 
DPSs on November 15, 2010: the Florida Times-Union (Florida), the 
Atlanta Journal Constitution (Georgia), The State (South Carolina), The 
Charlotte Observer (North Carolina), and the Richmond

[[Page 5954]]

Times-Dispatch (Virginia). As the commenter noted, we also placed a 
notice in the local paper, The Star-News, for Wilmington, North 
Carolina, where the first hearing was held. An announcement with a link 
to the Federal Register notice for the hearings was placed on the 
Southeast Regional Office's Web site on December 2, 2010.

Summary of Changes From the Proposed Listing Rule

    Based on the comments received and our review of the proposed rule, 
we made the changes listed below.
    1. We refined the text descriptions of the watersheds making up the 
ranges of the Carolina and South Atlantic DPSs and the individual fish 
that are included in the DPSs. The modifications to the text only 
clarify the riverine ranges of the DPSs and do not change the spawning 
populations making up each of the Southeast DPSs.
    2. We slightly extended the marine range of the DPSs based on 
recent tagging data. We also provided refined maps showing the riverine 
ranges of the Carolina and South Atlantic DPSs using HUC 8 watershed 
boundaries.
    3. We added information on metapopulations and the importance of 
multiple viable riverine populations to the ``Conservation Status'' 
section, per our response to comment 1 from peer reviewers 1 and 2.
    4. We added information on the role of adaptation and competition 
in the observed low rate of genetic exchange between Atlantic sturgeon 
river populations, per comment 5 submitted by peer reviewer 1.
    5. We added information on polyploidy in Atlantic sturgeon and 
potential effects on the evaluation of minimum viable population size, 
per comment 7 submitted by a peer reviewer 1.
    6. We added information on recent estimated increases in juvenile 
Atlantic sturgeon abundance in the Altamaha River, Georgia, per comment 
2 submitted by peer reviewer 2.
    7. We added information about the nature of the samples used in the 
genetic analysis for the Waccamaw River population, per comment 13 
submitted by peer reviewer 3.
    8. We added Atlantic sturgeon location and abundance data provided 
by the states (North Carolina, South Carolina, and Georgia) for the 
Carolina and South DPS to the ``Distribution and Abundance'' section, 
per comments 19 and 20.
    9. We revised the erroneous statement in the section on climate 
change that the Carolina and South Atlantic DPSs are within a region 
the IPCC predicts will experience decreases in precipitation. As noted 
in our response to comment 45, the Southeast is predicted to experience 
increases in precipitation; however, evaporation is also predicted to 
increase with increasing temperatures and the net effect for the 
Southeast is predicted to be overall drying.
    10. We added and updated Atlantic sturgeon bycatch information in 
Section B ``Overutilization for Commercial, Recreational, Scientific, 
or Educational Purposes'' with information provided by the states of 
North Carolina and Georgia, per comment 47.
    11. We removed the statement that it is unlikely the aquarium 
industry could ever be effectively regulated, per comment 48.
    12. We updated information on the current holdings of Atlantic 
sturgeon in Florida aquaculture facilities.
    13. We corrected the location of the Bears Bluff National Fish 
Hatchery.
    14. We added information on impingement and entrainment of juvenile 
Atlantic sturgeon at the Brunswick Nuclear Power Plant on the lower 
Cape Fear River.
    15. We added an evaluation of North Carolina's NCCHPP and 
designation of AFSAs to our evaluation of current protective efforts.
    16. We made minor corrections and updates to information in the 
listing rule based on recommendations from peer reviewers, commenters, 
and our own review of the proposed listing rule.
    Our listing determination and summary of the data on which it is 
based, with the incorporated changes, are presented in the remainder of 
this document.

Taxonomy and Life History

    There are two subspecies of Atlantic sturgeon--the Gulf sturgeon 
(Acipenser oxyrinchus desotoi) and the Atlantic sturgeon (Acipenser 
oxyrinchus oxyrinchus). Historically, the Gulf sturgeon occurred from 
the Mississippi River east to Tampa Bay. Its present range extends from 
Lake Pontchartrain and the Pearl River system in Louisiana and 
Mississippi east to the Suwannee River in Florida. The Gulf sturgeon 
was listed as threatened under the ESA in 1991. The finding in this 
final rule addresses the subspecies Acipenser oxyrinchus oxyrinchus 
(referred to as Atlantic sturgeon), which is distributed along the 
eastern coast of North America. Historically, sightings have been 
reported from Hamilton Inlet, Labrador, south to the St. Johns River, 
Florida. Recently, a tagged Atlantic sturgeon was tracked off Cape 
Canaveral, Florida. Occurrences south of the St. Johns River, Florida, 
and in Labrador may have always been rare.
    Atlantic sturgeon is a long-lived, late-maturing, estuarine-
dependent, anadromous species. Atlantic sturgeon may live up to 60 
years, reach lengths up to 14 feet (ft; 4.27 meters (m)), and weigh 
over 800 pounds (lbs; 363 kg). They are distinguished by armor-like 
plates and a long protruding snout that is ventrally located, with four 
barbels crossing in front. Sturgeon are omnivorous benthic (bottom) 
feeders and filter quantities of mud along with their food. Adult 
sturgeon diets include mollusks, gastropods, amphipods, isopods, and 
fish. Juvenile sturgeon feed on aquatic insects and other invertebrates 
(ASSRT, 2007).
    Vital parameters of Atlantic sturgeon populations show clinal 
variation with faster growth and earlier age at maturation in more 
southern systems, though not all data sets conform to this trend. 
Atlantic sturgeon mature between the ages of 5 and 19 years in South 
Carolina (Smith et al., 1982), between 11 and 21 years in the Hudson 
River (Young et al., 1988), and between 22 and 34 years in the St. 
Lawrence River (Scott and Crossman, 1973). Atlantic sturgeon likely do 
not spawn every year. Multiple studies have shown that spawning 
intervals range from 1 to 5 years for males (Smith, 1985; Collins et 
al., 2000; Caron et al. 2002) and 2 to 5 years for females (Vladykov 
and Greeley, 1963; Van Eenennaam et al., 1996; Stevenson and Secor, 
1999). Fecundity of Atlantic sturgeon has been correlated with age and 
body size, with egg production ranging from 400,000 to 8 million eggs 
per year (Smith et al., 1982; Van Eenennaam and Doroshov, 1998; 
Dadswell, 2006). The average age at which 50 percent of maximum 
lifetime egg production is achieved is estimated to be 29 years, 
approximately 3 to 10 times longer than for other bony fish species 
examined (Boreman, 1997).
    Spawning adults migrate upriver in the spring, which occurs during 
February and March in southern systems, April and May in mid-Atlantic 
systems, and May and July in Canadian systems (Murawski and Pacheco, 
1977; Smith, 1985; Bain, 1997; Smith and Clugston, 1997; Caron et al., 
2002). In some southern rivers, a fall spawning migration may also 
occur (Rogers and Weber, 1995; Weber and Jennings, 1996; Moser et al., 
1998). Spawning typically occurs in flowing water between the salt 
front and fall line of large rivers, where optimal flows are 18 to 30 
inches (in) per second (46 to 76 centimeters (cm) per second) and 
depths are 36 to 89 ft (11 to 27 m) (Borodin, 1925; Leland, 1968; Scott 
and Crossman, 1973; Crance,

[[Page 5955]]

1987; Bain et al., 2000). The fall line is the boundary between an 
upland region of continental bedrock and an alluvial coastal plain, 
sometimes characterized by waterfalls or rapids. Sturgeon eggs are 
highly adhesive and are deposited on the bottom substrate, usually on 
hard surfaces (e.g., cobble) (Gilbert, 1989; Smith and Clugston, 1997). 
Hatching occurs approximately 94 to 140 hours after egg deposition at 
corresponding temperatures of 68.0 to 64.4 degrees Fahrenheit (20 to 18 
degrees Celsius). The newly emerged larvae assume a demersal existence 
(Smith et al., 1980). The yolksac larval stage is completed in about 8 
to 12 days, during which time the larvae move downstream to rearing 
grounds (Kynard and Horgan, 2002). During the first half of their 
migration downstream, movement is limited to night. During the day, 
larvae use benthic structure (e.g., gravel matrix) as refugia (Kynard 
and Horgan, 2002). During the latter half of migration, when larvae are 
more fully developed, movement to rearing grounds occurs both day and 
night. Juvenile sturgeon continue to move further downstream into 
brackish waters and eventually become residents in estuarine waters for 
months to years.
    Recovery of depleted populations is an inherently slow process for 
a late-maturing species such as Atlantic sturgeon. Their late age at 
maturity provides more opportunities for individuals to be removed from 
the population before reproducing. However, a long life-span also 
allows multiple opportunities to contribute to future generations 
provided the appropriate spawning habitat and conditions are available.

Distribution and Abundance

    Historically, Atlantic sturgeon were present in approximately 38 
river systems throughout their range, of which 35 systems have been 
confirmed to have had a historical spawning population. More recently, 
presence has been documented in 35 river systems with spawning taking 
place in at least 18 rivers. Spawning has been confirmed in the St. 
Lawrence, Annapolis, St. John, Kennebec, Hudson, Delaware, James, 
Roanoke, Tar-Pamlico, Cape Fear, Waccamaw, Great Pee Dee, Combahee, 
Edisto, Savannah, Ogeechee, Altamaha, and Satilla rivers. Rivers with 
possible, but unconfirmed, spawning populations include the St. Croix, 
Penobscot, Androscoggin, Sheepscot, York, Neuse, Santee and Cooper 
Rivers.
    Historical records from the 1700s and 1800s document large numbers 
of sturgeon in many rivers along the Atlantic Coast. Atlantic sturgeon 
underwent significant range-wide declines from historical abundance 
levels due to overfishing in the late 1800s, as discussed more fully 
below. Sturgeon stocks were further impacted through environmental 
degradation, especially due to loss of access to habitat and reduced 
water quality from the construction of dams in the early to mid-1900s. 
The species persisted in many rivers, though at greatly reduced levels 
(1 to 5 percent of their earliest recorded numbers), and commercial 
fisheries were active in many rivers during all or some of the years 
1962 to 1997 (Waldman and Wirgin, 1998; Smith and Clugston, 1997). Many 
of these contemporary fisheries resulted in continued overfishing, 
which prompted ASMFC to impose the Atlantic sturgeon fishing moratorium 
in 1998 and NMFS to close the EEZ to Atlantic sturgeon retention in 
1999.
    Quantified abundance estimates of Atlantic sturgeon obtained 
through sampling surveys are currently only available for the Hudson 
(NY) and Altamaha (GA) rivers, where adult spawning populations are 
estimated to be approximately 870 and 343 fish per year, respectively 
(Kahnle et al., 2007; Schueller and Peterson, 2006). Surveys from other 
rivers in the species' U.S. range are more qualitative, primarily 
focusing on documentation of multiple year classes and reproduction, as 
well as the presence of very large adults and gravid females, in the 
river systems. In the Southeast Region, spawning has been confirmed in 
11 rivers (Roanoke, Tar-Pamlico, Cape Fear, Waccamaw, Great Pee Dee, 
Combahee, Edisto, Savannah, Ogeechee, Altamaha, and Satilla rivers), 
with possible spawning occurring in 3 additional rivers (the Neuse, 
Santee and Cooper Rivers). Based on a comprehensive review of the 
available data, the literature, and information provided by local, 
state, and Federal fishery management personnel, the Altamaha River is 
believed to have the largest population in the Southeast (ASSRT, 2007). 
The larger size of this population relative to the other river 
populations in the Southeast is likely due to the absence of dams, the 
lack of heavy development in the watershed, and relatively good water 
quality, as Atlantic sturgeon populations in the other rivers in the 
Southeast have been affected by one or more of these factors. Trammel 
net surveys, as well as independent monitoring of incidental take in 
the American shad fishery, suggested that the Altamaha population was 
neither increasing nor decreasing. However, recent studies by Schueller 
and Peterson (2010) and Peterson (2011; UGA, pers. comm.) estimated 
large increases in abundance of Atlantic sturgeon juveniles from 2004-
2010, particularly during the 2009-2010 period. Schueller and Peterson 
(2010) conducted their research during the summers of 2004 to 2007 and 
estimated that juvenile abundance ranged from 1,072 to 2,033 
individuals in the Altamaha River, with age-1 and age-2 individuals 
comprising greater than 87 percent of the population. Based on 
modeling, estimated apparent survival and per capita recruitment 
indicated that the juvenile population experienced high annual 
turnover: apparent survival rates were low (less than 33 percent), and 
per capita recruitment was high (0.82-1.38). The numbers of juvenile 
Atlantic sturgeon in the Altamaha River in 2009 and 2010 were between 
approximately 3,500 and 6,500. However, the authors noted that their 
mark-recapture methods were not capable of providing separate estimates 
of annual survival and out-migration, yet these rates are critical in 
understanding recruitment processes for the species. Though 
quantitative abundance estimates obtained through sampling surveys are 
not available for the other river populations, because the Altamaha 
spawning population is the largest, we believe a conservative estimate 
of the other spawning populations in the Southeast Region is no more 
than 300 adults spawning per year.
    Historically, Atlantic sturgeon were abundant in most North 
Carolina coastal rivers and estuaries, with the largest fisheries 
occurring in the Roanoke River/Albemarle Sound system and in the Cape 
Fear River (Kahnle et al., 1998). Historical landings records from the 
late 1800s indicated that Atlantic sturgeon were very abundant within 
Albemarle Sound (approximately 135,600 lbs or 61,500 kg landed per 
year). Abundance estimates derived from these historical landings 
records indicated that between 7,200 and 10,500 adult females were 
present within North Carolina prior to 1890 (Armstrong and Hightower, 
2002; Secor 2002). NCDMF has conducted the Albemarle Sound IGNS, 
initially designed to target striped bass, since 1990. During that 
time, 842 YOY and subadult sturgeon have been captured. Incidental take 
of Atlantic sturgeon in the IGNS, as well as multiple observations of 
YOY from the Albemarle Sound and Roanoke River, provide evidence that 
spawning continues. Three adult Atlantic sturgeon (2 males, 1 unknown) 
were tagged in the Roanoke River during September 2010 and the fish 
were tracked out of the river several weeks later, potentially

[[Page 5956]]

suggesting a fall spawning run of Atlantic sturgeon in the Roanoke 
River. Catch records indicate that the Roanoke River Atlantic sturgeon 
population seemed to be increasing until 2000, when recruitment began 
to decline. The Albemarle IGNS data for 2006-2009 showed higher 
Atlantic sturgeon CPUEs (0.015 to 0.031) than the 2002-2005 period, 
though they were still lower than the 2000-2001 level (0.032) and there 
is no overall trend in the overall 1990-2009 CPUE dataset. Catch 
records and observations from other river systems in North Carolina 
exist (e.g., Hoff, 1980, Oakley, 2003, in the Tar and Neuse rivers; 
Moser et al., 1998, and Williams and Lankford, 2003, in the Cape Fear 
River) and provide evidence for spawning, but based on the relatively 
low numbers of fish caught, it is difficult to determine whether the 
populations in those systems are declining, rebounding, or remaining 
static. The Pamlico IGNS survey data from 2001-2009 shows peak CPUE of 
Atlantic sturgeon in 2005 (0.095), but no decreasing or increasing 
trends are apparent. River surveys in the Pamlico, Pungo, and Neuse 
Rivers since 2000 have shown a slight decrease in Atlantic sturgeon 
abundance. Also, large survey captures during a single year are 
difficult to interpret. For instance, abundance of Atlantic sturgeon 
below Lock and Dam 1 in the Cape Fear River seemed to have 
increased dramatically during the 1990-1997 surveys (Moser et al., 
1998) as the CPUE of Atlantic sturgeon was up to eight times greater 
during 1997 than in the earlier survey years. Since 1997, Atlantic 
sturgeon CPUE doubled between the years of 1997 and 2003 (Williams and 
Lankford, 2003). However, it is unknown whether this is an actual 
population increase reflecting the effects of North Carolina's ban on 
Atlantic sturgeon fishing that began in 1991, or whether the results 
were skewed by one outlier year. There was a large increase observed in 
2002, though the estimates were similar among all other years of the 
1997 to 2003 study.
    Atlantic sturgeon were likely present in many South Carolina river/
estuary systems historically, but it is not known where spawning 
occurred. Secor (2002) estimated that 8,000 spawning females were 
likely present prior to 1890, based on U.S. Fish Commission landing 
records. Since the 1800s, however, populations have declined 
dramatically (Collins and Smith, 1997). Recorded landings of Atlantic 
sturgeon in South Carolina peaked at 481,050 lbs (218,200 kg) in 1897, 
but 5 years later, only 93,920 lbs (42,600 kg) were reported landed 
(Smith et al., 1984). Landings remained depressed throughout the 1900s, 
with between 4,410 and 99,210 lbs (2,000 and 45,000 kg) of Atlantic 
sturgeon reported annually between 1958 and 1982 (Smith et al., 1984). 
During the last two decades, Atlantic sturgeon have been observed in 
most South Carolina coastal rivers, although it is not known if all 
rivers support a spawning population (Collins and Smith, 1997). 
Sampling for shortnose sturgeon (Acipenser brevirostrum) conducted in 
Winyah Bay captured two subadult Atlantic sturgeon in 2004. SCDNR noted 
in comments on the proposed listing rule that Atlantic sturgeon were 
captured in most nets set in Winyah Bay from April to July in 2007 to 
2009, including sites far upriver. Further, a researcher conducting 
pilot sonar survey trials in Winyah Bay potentially detected several 
hundred fish, many of which could be Atlantic sturgeon. The researcher 
has conducted pilot sonar trials in the Roanoke, Neuse, Cape Fear, and 
Pee Dee River systems and believes the initial results suggest Atlantic 
sturgeon densities in the Pee Dee River (Winyah Bay) system are higher 
than the other systems surveyed (J. Hightower, pers. comm.) Captures of 
age-1 juveniles from the Waccamaw River during the early 1980s suggest 
that a reproducing population of Atlantic sturgeon may persist in that 
river, although the fish could have been from the nearby Great Pee Dee 
River (Collins and Smith, 1997). Until recently, there was no evidence 
that Atlantic sturgeon spawned in the Great Pee Dee River, although 
subadults were frequently captured and large adults were often observed 
by fishers. However, a fishery survey conducted by Progress Energy 
Carolinas Incorporated captured a running ripe male in October 2003 and 
observed other large sturgeon, perhaps revealing a fall spawning run 
(ASSRT, 2007). There are no data available regarding the presence of 
YOY or spawning adult Atlantic sturgeon in the Sampit River, although 
it did historically support a population and is thought to serve as a 
nursery ground for local stocks (ASMFC, 2009).
    The Santee-Cooper system had some of the highest historical 
landings of Atlantic sturgeon in the Southeast. Data from the U.S. Fish 
Commission shows that greater than 220,460 lbs (100,000 kg) of Atlantic 
sturgeon were landed in 1890 (Secor, 2002). The capture of 151 
subadults, including age-1 juveniles, in the Santee River in 1997 
suggests that an Atlantic sturgeon population still exists in this 
river (Collins and Smith, 1997). The status review report documents 
that three adult Atlantic sturgeon carcasses were found above the 
Wilson and Pinopolis dams in Lake Moultrie (a Santee-Cooper reservoir) 
during the 1990s, and also states that there is little information 
regarding a land-locked population existing above the dams. There is no 
effective fish passage for sturgeon on the Santee and Cooper Rivers, 
and the lowest dams on these rivers are well below the fall line, thus 
limiting the amount of freshwater spawning and developmental habitat 
for fish below the dams. In 2007, an Atlantic sturgeon entered the fish 
lift (a lock designed specifically for fish passage) at the St. Stephen 
dam; it was physically removed and translocated downstream into the 
Santee River (A. Crosby, SCDNR, pers. comm.) In 2004, 15 subadult 
Atlantic sturgeon were captured in shortnose sturgeon surveys in the 
Santee River estuary. The previous winter, four juvenile (YOY and 
subadults) Atlantic sturgeon were captured from the Santee (one fish) 
and Cooper (three fish) rivers. These data support previous hypotheses 
that a fall spawning run occurs within this system, similar to that 
observed in other southern river systems. However, the status review 
report notes that SCDNR biologists have some doubt whether smaller 
sturgeon from the Santee-Cooper are resident YOY, as flood waters from 
the Pee-Dee or Waccamaw Rivers could have transported these YOY to the 
Santee-Cooper system via Winyah Bay and the Intracoastal Waterway 
(McCord, 2004). Resident YOY could, however, be evidence of a spawning 
population above the dams, as is the case with shortnose sturgeon 
(Collins et al., 2003)
    From 1994 to 2001, over 3,000 juveniles have been collected in the 
Ashepoo-Combahee-Edisto Rivers (ACE) Basin, including 1,331 YOY 
sturgeon (Collins and Smith, 1997; ASSRT, 2007). Specifically, SCDNR 
reports that 3,661 juvenile (one- to three-year-old) Atlantic sturgeon 
were collected in the Edisto River during the 16-year period since 
1994. Utilizing this data, SCDNR used Lincoln-Peterson and Schnabel 
models to derive Atlantic sturgeon population estimates, which resulted 
in estimates of 70,000 and 20,000 juvenile Atlantic sturgeon in the 
Edisto River, respectively. SCDNR commented that the model results 
suggest increasing trends in abundance. Both models rely on mark-
recapture data and assume a closed population (there are no births, 
deaths, or immigration/emigration between the initial capture and the 
recapture period) and that all individuals have an equal chance of

[[Page 5957]]

being captured (Nichols, 1992; Lindeman, 1990; Chao, 1987). We note 
that there is great uncertainty in the population estimates resulting 
from the two models, as evident in the great disparity between the two 
numbers. The reliability of the population models depends on the 
validity of the assumptions, and the primary assumption of equal 
capture probability is likely unattainable in natural populations 
(Chao, 1987; Carothers, 1973). SCDNR indicated they are currently 
completing an open system model (which is based on survival 
probabilities, as well as capture probabilities) to better assess the 
Atlantic sturgeon population in the Edisto River. Sampling for adults 
began in 1997, with two adult sturgeon captured in the first year of 
the survey, including one gravid female captured in the Edisto River 
and one running ripe male captured in the Combahee River. The running 
ripe male in the Combahee River was recaptured one week later in the 
Edisto River, which suggests that the three rivers that make up the ACE 
Basin may support a single population that spawns in at least two of 
the rivers. Between 1997 and 1999, SCDNR captured 118 adults in the 
Edisto River during spring and fall spawning runs, but netting ceased 
once that number was reached, so the entire spawning run was not 
sampled and more Atlantic sturgeon may have been captured if netting 
continued. SCDNR also noted approximately 20 adults were captured in 
the Edisto River over one to two months during surveys targeting other 
species. In 2010, four adults tagged in the 1990's as age 0+ were 
recaptured. These captures show that a current spawning population 
exists in the ACE Basin, as both YOY and spawning adults are regularly 
captured.
    The Ashley River, along with the Cooper River, drains into 
Charleston Bay; only shortnose sturgeon have been studied in these 
rivers. While the Ashley River historically supported an Atlantic 
sturgeon spawning population, it is unknown whether the population 
still exists. There has been little or no scientific sampling for 
Atlantic sturgeon in the Broad/Coosawatchie River. One fish of unknown 
size was reported from a small directed fishery during 1981 to 1982 
(Smith and Dingley, 1984).
    Prior to the collapse of the fishery in the late 1800s, the 
sturgeon fishery was the third largest fishery in Georgia. Secor (2002) 
estimated from U.S. Fish Commission landing reports that approximately 
11,000 spawning females were likely present prior to 1890. The sturgeon 
fishery was mainly centered on the Altamaha River, and in more recent 
years, peak landings were recorded in 1982 (13,000 lbs, 5,900 kg). In 
Georgia, Atlantic sturgeon are believed to spawn in the Savannah, 
Ogeechee, Altamaha, and Satilla rivers. Based on juvenile presence and 
abundance, the Altamaha River currently supports one of the healthier 
Atlantic sturgeon populations in the southeast (ASSRT, 2007). Atlantic 
sturgeon are also present in the Ogeechee River; however, the absence 
of age-1 fish during some years and the unbalanced age structure 
suggests that the population is highly stressed (Rogers and Weber, 
1995). Sampling results from the mid-1990s indicated that the Atlantic 
sturgeon population in the Satilla River was also highly stressed 
(Rogers and Weber, 1995). Only four spawning adults or YOY, which were 
used for genetic analysis (Ong et al., 1996), had been collected from 
this river since 1995. In the most recent compliance report to ASMFC, 
University of Georgia (UGA) researchers collected more than 200 
Atlantic sturgeon in the Satilla River in less than 2 years of 
sampling. The presence of juvenile fish measuring less than 50 cm 
supports this is likely a self-sustaining, spawning population. The 
Savannah River supports a reproducing population of Atlantic sturgeon 
(Collins and Smith, 1997). According to NOAA's National Ocean Service, 
70 Atlantic sturgeon have been captured since 1999 (ASSRT, 2007). 
Twenty-two of these fish have been YOY. A running ripe male was 
captured at the base of the dam at Augusta during the late summer of 
1997, which supports the hypothesis that spawning occurs there in the 
fall. In the Savannah River, the SCDNR captured 369 Atlantic sturgeon 
between 1997 and 2010.
    Reproducing Atlantic sturgeon populations are no longer believed to 
exist south of the Satilla River in Georgia. Sampling of the St. Marys 
River in the early 1990s failed to locate any sturgeon, which suggests 
that the spawning population may be extirpated (Rogers et al., 1994). 
In January 2010, 12 sturgeon, believed to be Atlantic sturgeon, were 
captured at the mouth of the St. Marys during relocation trawling 
associated with a dredging project (J. Wilcox, Florida Fish and 
Wildlife Conservation Commission, pers. comm.), the first capture of 
Atlantic sturgeon in the St. Marys in decades. However, because they 
were not YOY or adults captured upstream, these trawl-captured sturgeon 
do not provide new evidence of a spawning population in the St. Marys. 
Researchers captured a total of 9 Atlantic sturgeon in the St. Marys 
River in March and June of 2010, based on a final report submitted to 
NMFS on a project funded through our Species Recovery Grant Program 
under section 6 of the ESA. The report stated that, based on the sizes 
of these individuals, the researchers concluded that none of these 
individuals were ``river-residents''. Though there was no definitive 
proof that these individuals had immigrated from other rivers, the 
report stated that the absence of small, river-resident juveniles 
suggests that Atlantic sturgeon in the St. Marys experienced complete 
recruitment failure from 2007-2010. There have been reports of Atlantic 
sturgeon tagged in the Edisto River (South Carolina) being recaptured 
in the St. Johns River, indicating this river may serve as a nursery 
ground; however, there are no data to support the existence of a 
current spawning population (i.e., YOY or running ripe adults) in the 
St. Johns (Rogers and Weber, 1995; Kahnle et al., 1998). In response to 
the proposed listing rule, Florida Fish and Wildlife Commission 
reported that 30 subadults (1 meter in length) were captured in the St. 
Marys River in 20 months and two juveniles (approximately 50 
centimeters, age-1 or 2) were captured in the St. Johns River in 
February 2011, though these captures do not provide new evidence of 
spawning based on the size/age classes of sturgeon caught.

Identification of Distinct Population Segments

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

[[Page 5958]]

Discreteness

    The joint DPS policy states that a population of a vertebrate 
species may be considered discrete if it satisfies either one of the 
following conditions: (1) It is markedly separated from other 
populations of the same taxon as a consequence of physical, 
physiological, ecological, or behavioral factors (quantitative measures 
of genetic or morphological discontinuity may provide evidence of this 
separation) or (2) it is delimited by international governmental 
boundaries within which differences in control of exploitation, 
management of habitat, conservation status, or regulatory mechanisms 
exist that are significant in light of Section 4(a)(1)(D) of the ESA.
    Atlantic sturgeon throughout their range exhibit ecological 
separation during spawning that has resulted in multiple, genetically 
distinct, interbreeding population segments. Tagging studies and 
genetic analyses provide the evidence of this ecological separation 
(Wirgin et al., 2000; King et al., 2001; Waldman et al., 2002; ASSRT, 
2007; Grunwald et al., 2008). As previously discussed, though adult and 
subadult Atlantic sturgeon originating from different rivers mix in the 
marine environment (Stein et al., 2004a), the vast majority of Atlantic 
sturgeon return to their natal rivers to spawn, with some studies 
showing only one or two individuals per generation spawning outside 
their natal river system (Wirgin et al., 2000; King et al., 2001; 
Waldman et al., 2002). In addition, spawning in the various river 
systems occurs at different times, with spawning occurring earliest in 
southern systems and occurring as much as 5 months later in the 
northernmost river systems (Murawski and Pacheco, 1977; Smith, 1985; 
Rogers and Weber, 1995; Weber and Jennings, 1996; Bain, 1997; Smith and 
Clugston, 1997; Moser et al., 1998; Caron et al., 2002). Therefore, the 
ecological separation of the interbreeding units of Atlantic sturgeon 
results primarily from spatial separation (i.e., very few fish spawning 
outside their natal river systems), as well as temporal separation 
(spawning populations becoming active at different times along a 
continuum from north to south).
    Genetic analyses of mitochondrial DNA (mtDNA), which is maternally 
inherited, and nuclear DNA (nDNA), which reflects the genetics of both 
parents, provides evidence of the separation among Atlantic sturgeon 
populations in different rivers (Bowen and Avise, 1990; Ong et al., 
1996; Waldman et al., 1996a; Waldman et al., 1996b; Waldman and Wirgin, 
1998; Waldman et al., 2002; King et al., 2001; Wirgin et al., 2002; 
Wirgin et al., 2005; Wirgin and King, 2006; Grunwald et al., 2008). 
Overall, these studies consistently found Atlantic sturgeon to be 
genetically diverse, and offered that between seven and ten Atlantic 
sturgeon population groupings can be statistically differentiated 
range-wide (King et al., 2001; Waldman et al., 2002; Wirgin et al., 
2002; Wirgin et al., 2005; ASSRT, 2007 (Tables 4 and 5); Grunwald et 
al., 2008).
    Given a number of key differences among the studies (e.g., the 
analytical and/or statistical methods used, the number of rivers 
sampled, and whether samples from subadults were included), it is not 
unexpected that each reached a different conclusion regarding the 
number of Atlantic sturgeon population groupings. Wirgin and King 
(2006) refined the genetic analyses for Atlantic sturgeon to address 
such differences in prior studies. Most notably, they increased sample 
sizes from multiple rivers and limited the samples analyzed to those 
collected from YOY and mature adults (greater than 130 cm total length) 
to ensure that the fish originated from the river in which it was 
sampled. The results of the refined analysis by Wirgin and King (2006) 
are presented in the status review report (ASSRT, 2007; e.g., Table 6 
and Figure 17); both the mtDNA haplotype and nDNA allelic frequencies 
analyzed by Wirgin and King (2006) indicated that Atlantic sturgeon 
river populations are genetically differentiated. The results of the 
mtDNA analysis used for the status review report were also subsequently 
published by Grunwald et al. (2008). In comparison to the mtDNA 
analyses of the status review report, Grunwald et al. (2008) used 
additional samples, some from fish in the size range (less than 130 cm) 
excluded by Wirgin and King because they were smaller than those 
considered to be mature adults. Nevertheless, the results were 
qualitatively the same and demonstrated that each of the 12 sampled 
Atlantic sturgeon populations could be genetically differentiated 
(Grunwald et al., 2008).
    Genetic distances and statistical analyses (bootstrap values and 
assignment test values) were used to investigate significant 
relationships among, and differences between, Atlantic sturgeon river 
populations (ASSRT, 2007; Table 6 and Figures 16-18). Overall, the 
genetic markers used in this analysis resulted in an average accuracy 
of 88 percent for determining a sturgeon's natal river origin, but an 
average accuracy of 94 percent for correctly classifying it to one of 
five groups of populations (Kennebec River, Hudson River, James River, 
Albemarle Sound, and Savannah/Ogeechee/Altamaha Rivers) when using 
microsatellite data collected only from YOY and adults (ASSRT, 2007; 
Table 6). The overall accuracy in assigning an Atlantic sturgeon to its 
natal river ranged from 60 to 94.8 percent (60 to 91.7 percent for 
southeastern rivers), while the overall accuracy in identifying a 
sturgeon to one of the 5 DPSs ranged between 88.1 and 95.9 percent 
(91.7 to 95.9 percent for the two southeastern DPSs). A phylogenetic 
tree (a neighbor joining tree) was produced from only YOY and adult 
samples (to reduce the likelihood of including strays from other 
populations) using the microsatellite analysis (ASSRT, 2007; Figure 
17). Bootstrap values (which measure how consistently the data support 
the tree structure) for this tree were high (the lowest was 87 percent, 
and all others were over 90 percent) (ASSRT, 2007). Regarding sturgeon 
from southeast rivers, this analysis resulted in a range of 60 to 92 
percent accuracy in determining a sturgeon's natal river origin, but 92 
and 96 percent accuracy in correctly classifying a sturgeon from four 
sampled river populations (the Albemarle Sound, Savannah, Ogeechee, and 
Altamaha River populations) to two groupings of river populations 
(Albemarle Sound and Savannah/Ogeechee/Altamaha Rivers). These two 
groupings exhibited clear separation from northern populations and from 
each other.
    Genetic samples for YOY and spawning adults were not available for 
river populations originating between the Albemarle Sound and the other 
three rivers. However, nDNA from an expanded dataset that included 
juvenile Atlantic sturgeon was used to produce a neighbor-joining tree 
with bootstrap values (ASSRT, 2007; Figure 18). This dataset included 
additional samples from the Santee-Cooper, Waccamaw, and Edisto 
populations in the Southeast. Atlantic sturgeon river populations also 
grouped into five population segments along the U.S. East Coast in this 
analysis. In the Southeast, Atlantic sturgeon from the Santee-Cooper 
system grouped with the Albemarle Sound population, while the other two 
river populations grouped with the Savannah/Ogeechee/Altamaha River 
population segment. With the exception of the Waccamaw River 
population, all river populations sampled within each population 
segment along the entire East Coast were geographically adjacent. The 
Waccamaw River population

[[Page 5959]]

grouped with the Edisto/Savannah/Ogeechee/Altamaha River population 
segment, even though it is geographically located between Albemarle 
Sound and the Santee and Cooper Rivers. However, we attributed this to 
the small sample size (21 fish) from the Waccamaw River and the fact 
that all samples came from juveniles, which may be migrants from other 
systems. From the seven Southeast river populations included in the 
analysis, we determined based on genetic information that river 
populations from the ACE Basin southward are a genetically distinct, 
interbreeding population segment and that river populations between the 
Santee-Cooper system and Albemarle Sound (Roanoke River) are a 
genetically distinct, interbreeding population segment.
    The higher accuracy in identifying Atlantic sturgeon to one of two 
population groupings (Albemarle Sound/Santee-Cooper Rivers and 
Ogeechee/Savannah/Altamaha/Edisto Rivers) compared to their natal 
rivers supports the fact that these multiple-river population segments 
are discrete from each other.
    We have considered the information on Atlantic sturgeon population 
structuring provided in the status review report and Grunwald et al. 
(2008). The nDNA analyses described in the status review report provide 
additional genetic information and include chord distances and 
bootstrap values to support the findings for population structuring of 
Atlantic sturgeon within the United States. Therefore, based on genetic 
differences observed among certain river populations and the assumption 
that adjacent river populations are more likely to breed with one 
another than river populations from rivers that are not adjacent to 
each other, five discrete Atlantic sturgeon population segments in the 
United States meet the DPS Policy's discreteness criterion, with two 
located in the Southeast: (1) The ``Carolina'' population segment, 
which includes Atlantic sturgeon originating from the Roanoke, Tar/
Pamlico, Cape Fear, Waccamaw, Pee Dee, and Santee-Cooper Rivers, and 
(2) the ``South Atlantic'' population segment, which includes Atlantic 
sturgeon originating from the ACE Basin (Ashepoo, Combahee, and Edisto 
rivers), Savannah, Ogeechee, Altamaha, and Satilla Rivers.

Significance

    When the discreteness criterion is met for a potential DPS, as it 
is for the Carolina and South Atlantic population segments in the 
Southeast identified above, the second element that must be considered 
under the DPS policy is significance of each DPS to the taxon as a 
whole. The DPS policy cites examples of potential considerations 
indicating significance, including: (1) Persistence of the discrete 
population segment in an ecological setting unusual or unique for the 
taxon; (2) evidence that loss of the discrete population segment would 
result in a significant gap in the range of the taxon; (3) evidence 
that the DPS represents the only surviving natural occurrence of a 
taxon that may be more abundant elsewhere as an introduced population 
outside its historical range; or, (4) evidence that the discrete 
population segment differs markedly from other populations of the 
species in its genetic characteristics.
    We believe that the Carolina and South Atlantic population segments 
persist in ecological settings unique for the taxon. This is evidenced 
by the fact that spawning habitat of each population grouping is found 
in separate and distinct ecoregions that were identified by TNC based 
on the habitat, climate, geology, and physiographic differences for 
both terrestrial and marine ecosystems throughout the range of the 
Atlantic sturgeon along the Atlantic coast (Figure 1). TNC descriptions 
do not include detailed information on the chemical properties of the 
rivers within each ecoregion, but include an analysis of bedrock and 
surficial geology type because it relates to water chemistry, 
hydrologic regime, and substrate. It is well established that waters 
have different chemical properties (i.e., identities) depending on the 
geology of where the waters originate.
    Riverine spawning habitat of the Carolina population segment occurs 
within the Mid-Atlantic Coastal Plain ecoregion, which is described as 
consisting of bottomland hardwood forests, swamps, and some of the 
world's most active coastal dunes, sounds, and estuaries. Natural 
fires, floods, and storms are so dominant in this region that the 
landscape changes very quickly. Rivers routinely change their courses 
and emerge from their banks. The TNC lists the most significant threats 
(sources of biological and ecological stress) in the region as: Global 
climate change and rising sea-level; altered surface hydrology and 
landform alteration (e.g., flood-control and hydroelectric dams, inter-
basin transfers of water, drainage ditches, breached levees, artificial 
levees, dredged inlets and river channels, beach renourishment, and 
spoil deposition banks and piles); a regionally receding water table, 
probably resulting from both over-use and inadequate recharge; fire 
suppression; land fragmentation, mainly by highway development; land-
use conversion (e.g., from forests to timber plantations, farms, golf 
courses, housing developments, and resorts); the invasion of exotic 
plants and animals; air and water pollution, mainly from agricultural 
activities including concentrated animal feed operations; and over-
harvesting and poaching of species. Many of the Carolina population 
segment's spawning rivers, located in the Mid-Coastal Plain, originate 
in areas of marl. Waters draining calcareous, impervious surface 
materials such as marl are likely to be alkaline, dominated by surface 
run-off, have little groundwater connection, and be seasonally 
ephemeral.
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    The riverine spawning habitat of the South Atlantic population 
segment occurs within the South Atlantic Coastal Plain ecoregion. TNC 
describes the South Atlantic Coastal Plain ecoregion as fall-line 
sandhills to rolling longleaf pine uplands to wet pine flatwoods; from 
small streams to large river systems to rich estuaries; from isolated 
depression wetlands to Carolina bays to the Okefenokee Swamp. Other 
ecological systems in the ecoregion include maritime forests on barrier 
islands, pitcher plant seepage bogs and Altamaha grit (sandstone) 
outcrops. The primary threats to biological diversity in the South 
Atlantic Coastal Plain listed by TNC are intensive silvicultural 
practices, including conversion of natural forests to highly managed 
pine monocultures and the clear-cutting of bottomland hardwood forests. 
Changes in water quality and quantity, caused by hydrologic alterations 
(impoundments, groundwater withdrawal, and ditching), and point and 
nonpoint pollution, are threatening the aquatic systems. Development is 
a growing threat, especially in coastal areas. Agricultural conversion, 
fire regime alteration, and the introduction of nonnative species are 
additional threats to the ecoregion's diversity. The South Atlantic 
DPS's spawning rivers, located in the South Atlantic Coastal Plain, are 
primarily of two types: brown-water (with headwaters north of the Fall 
Line, silt-laden) and black-water (with headwaters in the coastal 
plain, stained by tannic acids).
    Therefore, the ecoregion delineations support that the physical and 
chemical properties of the Atlantic sturgeon spawning rivers utilized 
by the Carolina and South Atlantic DPSs are unique to each population 
segment. Since reproductive isolation accounts for the discreteness of 
each population segment, the Carolina and South Atlantic population 
segments of Atlantic sturgeon are ``significant'' as defined in the DPS 
policy given that the spawning rivers for each population segment occur 
in a unique ecological setting.
    The loss of either the Carolina or the South Atlantic population 
segments of Atlantic sturgeon would create a significant gap in the 
range of the taxon. The loss of the Carolina population segment would 
result in a 475-mile (764-kilometer (km)) gap between the northern 
population segments and the South Atlantic population segment. The loss 
of the South Atlantic population segment would truncate the southern 
range of Atlantic sturgeon by greater than 150 miles (241 km). Though 
Atlantic sturgeon travel great distances in the marine environment and 
may use multiple river systems for foraging and nursery habitat, the 
range occupied by the Carolina and South Atlantic population segments 
would likely not be recolonized by a new, viable spawning population if 
either population segment was lost, except over a long time frame. 
Genetic analyses show that fewer than two individuals per generation 
spawn outside their natal rivers (Wirgin et al., 2000; King et al., 
2001; Waldman et al., 2002). However, a caveat to this information is 
that a natal river population, well-established over a long span of 
geological time and highly adapted to its respective natal river, may 
not realize success in colonizing another river already populated by a 
second population better adapted to its respective natal river than a 
potential colonist. The low rate of genetic exchange displayed among 
adjacent sturgeon populations may not reflect the incapacity of the 
species to colonize, but the competitive advantage held by a pre-
established natal river population facing migrant individuals. However, 
we do not expect Atlantic sturgeon that originate from other population 
segments to re-colonize extirpated systems and establish new spawning 
populations, except perhaps over a long time frame (i.e., many Atlantic 
sturgeon generations). Therefore, the loss of either the Carolina or 
South Atlantic population segments would result in a significant gap in 
the range of Atlantic sturgeon over a long time frame, and negatively 
impact the species as a whole because the loss of either population 
segment would constitute an important loss of genetic diversity for the 
Atlantic sturgeon.
    The information presented above describes: (1) Persistence of the 
Carolina and South Atlantic population segments in ecological settings 
that are unique for the Atlantic sturgeon as a whole; and (2) evidence 
that loss of either population segment would result in a significant 
gap in the range of the taxon. Based on this information, we conclude 
that the Carolina and South Atlantic population segments meet the 
discreteness and significance criteria outlined in the DPS policy. We 
hereafter refer to these DPSs as the Carolina and South Atlantic DPSs. 
Figures 2 and 3 show the Carolina and South Atlantic DPSs. While the 
entire marine range of both the Carolina and South Atlantic DPSs 
extends from the Hamilton Inlet, Labrador, Canada, to Cape Canaveral, 
Florida, figures 2 and 3 only depict the portion of the marine range 
directly adjacent to the riverine portions of each DPS.
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Conservation Status

    To determine the conservation status of the two DPSs in the 
Southeast Region's jurisdiction, the Carolina and South Atlantic DPSs, 
in relation to the ESA's standards for listing, we evaluated whether 
each DPS meets the definition of ``endangered'' or ``threatened'' as 
defined in section 3 of the ESA, and whether that status is a result of 
one or a combination of the factors listed under section 4(a)(1) of the 
ESA. An endangered species is ``any species which is in danger of 
extinction throughout all or a significant portion of its range'' and a 
threatened species is one ``which is likely to become an endangered 
species within the foreseeable future throughout all or a significant 
portion of its range.''
    The abundance of Atlantic sturgeon has decreased dramatically 
within the last 150 years. A major fishery for Atlantic sturgeon 
developed in 1870 when a caviar market was established (Smith and 
Clugston, 1997). Record landings in the United States were reported in 
1890, with over 7,385,000

[[Page 5964]]

lbs (3,350,000 kg) of Atlantic sturgeon landed from coastal rivers 
along the entire Atlantic Coast (Smith and Clugston, 1997; Secor and 
Waldman, 1999). Ten years after peak landings, the fishery collapsed in 
1901, when less than 10 percent (650,365 lbs, 295,000 kg) of the U.S. 
1890 peak landings were reported. The landings continued to decline 
coastwide, reaching about 5 percent of the peak in 1920. During the 
1950s, the remaining U.S. fishery switched to targeting sturgeon for 
flesh, rather than caviar, and coastwide landings remained between 1 
and 5 percent of the 1890 peak levels until the Atlantic sturgeon 
fishery was closed by ASMFC in 1998. None of the riverine spawning 
populations in either DPS have rebounded from the population crashes to 
be large or stable enough to provide with any level of certainty for 
continued existence of Atlantic sturgeon in this part of its range. All 
of the spawning populations in each DPS are subjected to threats and 
impacts that have and will continue to prevent population increases and 
recovery. We must look at the status of river populations across the 
whole of the DPSs in making our listing determinations.
    The importance of having multiple self-sustaining riverine spawning 
populations within each DPS and the need to maintain suitable habitat 
to support the various life functions (spawning, feeding, growth) of 
Atlantic sturgeon is further highlighted by looking at the concept of 
metapopulations. Each DPS, made up of multiple river populations, is 
analogous to a metapopulation, which is a ``population of populations'' 
(Levins, 1969), a group of spatially separated populations of the same 
species that interact at some level. The metapopulation concept is 
closely linked with the processes of population turnover, extinction, 
and establishment of new populations, and the study of metapopulation 
dynamics is essentially the study of the conditions under which these 
two processes are in balance and the consequences of that balance to 
associated processes (Hanski and Gilpin, 1991). Separation into 
metapopulations is expected by sturgeon and other anadromous fishes, 
given their likely stepping-stone sequential model of recolonization of 
northern rivers following post-Pleistocene deglaciation (Waldman et al. 
2002).
    Metapopulation persistence depends on the balance of extinction and 
colonization in a static environment (Hanski 1996). Models and 
empirical observations suggest that very small populations are 
relatively likely to become extinct (Soul[eacute], 1986; Lande, 1988; 
Simberloff, 1988; Thomas, 1990; Kindvall and Alhlen, 1992), and many 
local populations in remnant habitat fragments will remain small. Under 
the assumption that the environment does not change greatly, many 
empirical studies have shown that the expected lifetime of a population 
increases with its current size (Williamson 1981, Diamond 1984, 
Schoener and Spiller 1987). However, for rare and declining species, 
Thomas (1994) argues that: (1) Extinction is usually the deterministic 
consequence of the local environment becoming unsuitable (through 
habitat loss or modification, introduction of a predator, etc.); (2) 
that the local environment usually remains unsuitable following local 
extinction, so extinctions only rarely generate empty patches of 
suitable habitat; and 3) that colonization usually follows improvement 
of the local environment for a particular species. Therefore, if 
habitat remains suitable following local extirpation, recolonization 
via immigrants into now-empty habitat may replace at least some of 
those losses (Thomas 1994). However, if the cause of extinction is a 
deterministic population response to unsuitable conditions (e.g., lack 
of suitable spawning habitat, poor water quality, or disturbance of 
substrates through repeated dredging), the local habitat is likely to 
remain unsuitable after extinction and be unavailable for 
recolonization (Thomas 1994). Therefore, recolonization is dependent 
upon both immigration from adjacent, healthy populations and habitat 
suitability. Because a DPS is a group of populations, the stability, 
viability, and persistence of individual populations affects the 
persistence and viability of the larger DPS. The loss of any population 
within a DPS will result in: (1) A long-term gap in the range of the 
DPS that is unlikely to be recolonized, or recolonized only very 
slowly; (2) loss of reproducing individuals; (3) loss of genetic 
biodiversity; (4) potential loss of unique haplotypes; (5) potential 
loss of adaptive traits; and (6) reduction in total number. The loss of 
a population will negatively impact the persistence and viability of 
the DPS as a whole as fewer than two individuals per generation 
currently spawn outside their natal rivers.
    The persistence of individual populations, and in turn the DPS, 
depends on successful spawning and rearing within the freshwater 
habitat, the immigration into marine habitats to grow, and then the 
return of adults to natal rivers to spawn. Information on Atlantic 
sturgeon spawning within the Carolina and South Carolina DPSs is 
extremely limited. In the proposed listing rule, we presumed spawning 
was occurring if young-of-the-year (YOY) were observed or mature adults 
were present in freshwater portions of the system. Within the Carolina 
DPS, we concluded that spawning is occurring in the following rivers 
based on these data:
    1. Roanoke River--collection of 15 YOY (1997-1998); single YOY 
(2005).
    2. Tar and Neuse Rivers--one YOY (2005).
    3. Cape Fear--upstream migration of adults in the fall, carcass of 
ripe female upstream in mid-September.
    4. Winyah Bay--running ripe male in Great Pee De River (2003).
    Within the South Atlantic DPS, we concluded that spawning is 
occurring in the following rivers based on these data:
    1. ACE (Ashepoo, Combahee, and Edisto Rivers) Basin--1,331 YOY 
(1994-2001); gravid female and running ripe male in the Edisto (1997); 
39 spawning adults (1998).
    2. Savannah River--22 YOY (1999-2006); running ripe male (1997).
    3. Ogeechee River--age-1 captures, but high inter-annual 
variability (1991-1998); 17 YOY (2003); 9 YOY (2004).
    4. Altamaha River--74 captured/308 estimated spawning adults 
(2004); 139 captured/378 estimated spawning adults (2005).
    5. Satilla River--4 YOY and spawning adults (1995-1996).
    These data indicate that spawning occurs within the Carolina and 
South Atlantic DPSs; they do not indicate the frequency of annual 
spawning events or the degree to which spawning in these systems leads 
to population growth, persistence, or viability. The extent and 
effectiveness of spawning events is unknown and likely precarious in 
many rivers given ongoing threats such as water quality and restricted 
access to upstream spawning areas (75 FR 61904). In addition to 
spawning success, it is difficult to quantify spawning potential within 
the two DPSs given the lack of population estimates. Currently, the 
number of Atlantic sturgeon in the Carolina DPS is estimated as at 3 
percent of historical population size and the South Atlantic DPS is 
estimated to be at 1 percent of historical population size, with the 
exception of the Altamaha River population, estimated to be at 6 
percent of historical population size. Although the largest impact that 
caused the precipitous decline of the species has been curtailed 
(directed fishing), the population size has remained relatively 
constant at these greatly reduced levels for approximately 100 years.

[[Page 5965]]

    The Carolina DPS includes all Atlantic sturgeon that spawn or are 
spawned in the watersheds (including all rivers and tributaries) from 
Albemarle Sound southward along the southern Virginia, North Carolina, 
and South Carolina coastal areas to Charleston Harbor. The marine range 
of Atlantic sturgeon from the Carolina DPS extends from the Hamilton 
Inlet, Labrador, Canada, to Cape Canaveral, Florida. While Atlantic 
sturgeon exhibit a high degree of spawning fidelity to their natal 
rivers, multiple riverine, estuarine, and marine habitats may serve 
various life (e.g., nursery, foraging, and migration) functions. Rivers 
known to have current spawning populations within the range of this DPS 
include the Roanoke, Tar-Pamlico, Cape Fear, Waccamaw, and Pee Dee 
Rivers. However, in some rivers, spawning by Atlantic sturgeon may not 
be contributing to population growth because of lack of suitable 
habitat and other stressors on juvenile survival and development. There 
may also be spawning populations in the Neuse, Santee and Cooper 
Rivers, though it is uncertain. Historically, both the Sampit and 
Ashley Rivers were documented to have spawning populations at one time. 
However, the spawning population in the Sampit River is believed to be 
extirpated and the current status of the spawning population in the 
Ashley River is unknown. Both rivers may be used as nursery habitat by 
young Atlantic sturgeon originating from other spawning populations. 
This represents our current knowledge of the river systems utilized by 
the Carolina DPS for specific life functions, such as spawning, nursery 
habitat, and foraging. However, fish from the Carolina DPS likely use 
other river systems than those listed here for their specific life 
functions. The Carolina DPS also includes Atlantic sturgeon held in 
captivity (e.g., aquaria, hatcheries, and scientific institutions) and 
which are identified as fish belonging to the Carolina DPS based on 
genetics analyses, previously applied tags, previously applied marks, 
or documentation to verify that the fish originated from (hatched in) a 
river within the range of the Carolina DPS, or is the progeny of any 
fish that originated from a river within the range of the Carolina DPS. 
NMFS has no records of Atlantic sturgeon from the Carolina DPS being 
held in captivity.
    Historical landings data indicate that between 7,000 and 10,500 
adult female Atlantic sturgeon were present in North Carolina prior to 
1890 (Armstrong and Hightower, 2002; Secor, 2002). Secor (2002) 
estimates that 8,000 adult females were present in South Carolina 
during that same timeframe. Prior reductions from the commercial 
fishery and ongoing threats have drastically reduced the numbers of 
Atlantic sturgeon within the Carolina DPS. Currently, the Atlantic 
sturgeon spawning population in at least one river system within the 
Carolina DPS has been extirpated, with a potential extirpation in an 
additional system. The abundance of the remaining river populations 
within the DPS, each estimated to have fewer than 300 spawning adults, 
is estimated to be less than 3 percent of what it was historically 
(ASSRT, 2007). Though directed fishing and possession of Atlantic 
sturgeon is no longer legal, the Carolina DPS continues to face threats 
such as habitat alteration and bycatch. The presence of dams has 
resulted in the loss of access to over 60 percent of the historical 
sturgeon habitat on the Cape Fear River and in the Santee-Cooper 
system. This has resulted in the loss of important spawning and 
juvenile developmental habitat and has reduced the quality of the 
remaining habitat by affecting water quality parameters (such as depth, 
temperature, velocity, and DO) that are important to sturgeon.
    The South Atlantic DPS includes all Atlantic sturgeon that spawn or 
are spawned in the watersheds (including all rivers and tributaries) of 
the ACE Basin southward along the South Carolina, Georgia, and Florida 
coastal areas to the St. Johns River, Florida. The marine range of 
Atlantic sturgeon from the South Atlantic DPS extends from the Hamilton 
Inlet, Labrador, Canada, to Cape Canaveral, Florida. While Atlantic 
sturgeon exhibit a high degree of spawning fidelity to their natal 
rivers, multiple riverine, estuarine, and marine habitats may serve 
various life (e.g., nursery, foraging, and migration) functions. Rivers 
known to have current spawning populations within this DPS include the 
Combahee, Edisto, Savannah, Ogeechee, Altamaha, and Satilla Rivers. 
However, in some rivers, spawning by Atlantic sturgeon may not be 
contributing to population growth because of lack of suitable habitat 
and other stressors on juvenile survival and development. Historically, 
both the Broad-Coosawatchie and St. Marys Rivers were documented to 
have spawning populations at one time; there is also evidence that 
spawning may have occurred in the St. Johns River or one of its 
tributaries. However, the spawning population in the St. Marys River, 
as well as any historical spawning population present in the St. Johns, 
is believed to be extirpated, and the status of the spawning population 
in the Broad-Coosawatchie is unknown. Both the St. Marys and St. Johns 
Rivers are used as nursery habitat by young Atlantic sturgeon 
originating from other spawning populations. The use of the Broad-
Coosawatchie by sturgeon from other spawning populations is unknown at 
this time. The presence of historical and current spawning populations 
in the Ashepoo River has not been documented; however, this river may 
currently be used for nursery habitat by young Atlantic sturgeon 
originating from other spawning populations. This represents our 
current knowledge of the river systems utilized by the South Atlantic 
DPS for specific life functions, such as spawning, nursery habitat, and 
foraging. However, fish from the South Atlantic DPS likely use other 
river systems than those listed here for their specific life functions. 
The South Atlantic DPS also includes Atlantic sturgeon held in 
captivity (e.g., aquaria, hatcheries, and scientific institutions) and 
which are identified as fish belonging to the South Atlantic DPS based 
on genetics analyses, previously applied tags, previously applied 
marks, or documentation to verify that the fish originated from 
(hatched in) a river within the range of the South Atlantic DPS, or is 
the progeny of any fish that originated from a river within the range 
of the South Atlantic DPS. Ten Atlantic sturgeon taken from the 
Altamaha River are currently being held at the Bears Bluff National 
Fish Hatchery on Wadmalaw Island, South Carolina, though it is not 
certain whether those fish were spawned in the Altamaha or were 
migrants from another river system. NMFS has no other records of 
Atlantic sturgeon from the South Atlantic DPS being held in captivity.
    Secor (2002) estimated that 8,000 spawning female Atlantic sturgeon 
were present in South Carolina. Historically, the population of 
spawning female Atlantic sturgeon in Georgia was estimated at 11,000 
fish per year prior to 1890 (Secor, 2002). Prior reductions from the 
commercial fishery and ongoing threats have drastically reduced the 
numbers of Atlantic sturgeon within the South Atlantic DPS. Currently, 
the Atlantic sturgeon spawning population in one (possibly two) river 
systems within the South Atlantic DPS have been extirpated. The 
Altamaha River, with an estimated 343 spawning adults per year, is 
suspected to be less than 6 percent of its historical abundance, 
extrapolated from the 1890s commercial landings; the abundance of the 
remaining river populations within the

[[Page 5966]]

DPS, each estimated to have fewer than 300 spawning adults, is 
estimated to be less than 1 percent of what it was historically (ASSRT, 
2007). While the directed fishery that originally drastically reduced 
the numbers of Atlantic sturgeon has been closed, other impacts have 
contributed to their low population numbers, may have contributed to 
the extirpation of some spawning populations, and are likely inhibiting 
recovery of extant river populations. Historically, Atlantic sturgeon 
likely accessed all parts of the St. Johns River, as American shad were 
reported as far upstream as Lake Poinsett (reviewed in McBride, 2000). 
However, the construction of Kirkpatrick Dam (originally Rodman Dam) at 
river mile (rm) 95 (rkm 153) restricted migration to potential spawning 
and juvenile developmental habitat upstream. Approximately 63 percent 
of historical sturgeon habitat is believed to be blocked due to the dam 
(ASSRT, 2007), and there is no longer a spawning population in the St. 
Johns River.
    Small numbers of individuals resulting from drastic reductions in 
populations, such as occurred with Atlantic sturgeon due to the 
commercial fishery, can remove the buffer against natural demographic 
and environmental variability provided by large populations (Berry, 
1971; Shaffer, 1981; Soul[eacute], 1980). Though the Carolina and South 
Atlantic DPSs, made up of multiple river populations of Atlantic 
sturgeon, were determined to be genetically discrete, interbreeding 
population units, the vast majority of Atlantic sturgeon return to 
their natal rivers to spawn, with fewer than two migrants per 
generation spawning outside their natal system (Wirgin et al., 2000; 
King et al., 2001; Waldman et al., 2002). Therefore, it is important to 
look at each riverine spawning population within each DPS when 
considering the effects of a small population size on the extinction 
risk for the DPS. Though there is no absolute population size above 
which populations are ``safe'' and below which they face an 
unacceptable risk of extinction (Gilpin and Soul[eacute], 1986; 
Soul[eacute] and Simberloff, 1986; Ewens et al., 1987; Goodman, 1987; 
Simberloff, 1988; Thomas, 1990), some have argued that ``rules of 
thumb'' can and should be applied (Soul[eacute], 1987; Thompson, 1991). 
Salwasser et al. (1984) prescribe a minimum viable population size of 
at least 1,000 reproducing adults. Belovsky (1987) indicates that a 
minimum viable population in the range of 1,000 to 10,000 reproducing 
adults should be sufficient for a mid-sized vertebrate species. 
Soul[eacute] (1987) suggests that minimum viable population sizes for 
vertebrate species should be in the ``low thousands'' or higher. Thomas 
(1990) offers a population size of 5,500 as ``a useful goal,'' but 
suggests that where uncertainty regarding a species' population 
dynamics, changing environmental conditions, and the species' reaction 
to the changing environmental conditions is extreme ``we should usually 
aim for population sizes from several thousand to ten thousand.'' In a 
NOAA Technical Memorandum entitled ``Determining Minimum Viable 
Populations under the ESA,'' Thompson (1991) states the ``50/500'' rule 
of thumb initially advanced by Franklin (1980) and Soul[eacute] (1980) 
comes the closest of any to attaining ``magic number'' status. Franklin 
(1980) has suggested that, simply to maintain short-term fitness (i.e., 
prevent serious inbreeding and its deleterious effects), the minimum 
effective population size should be around 50. He further recommended 
that, to maintain sufficient genetic variability for adaptation to 
changing environmental conditions, the minimum effective population 
size should be around 500. Soul[eacute] (1980) has pointed out that, 
above and beyond preserving short-term fitness and genetic 
adaptability, long-term evolutionary potential (at the species level) 
may well require a number of substantially larger populations. It is 
important to note that the 50/500 rule is cast in terms of effective 
population size, a concept introduced by Wright (1931). The effective 
population size refers to an ideal population of breeding individuals 
produced each generation by random union of an equal number of male and 
female gametes randomly drawn from the previous generation. To the 
extent that this ideal is violated in nature, the effective population 
size is generally smaller than the overall number of mature individuals 
in the population. Multiple studies have shown that Atlantic sturgeon 
do not spawn every year, with spawning intervals ranging from 1 to 5 
years for males (Smith, 1985; Collins et al., 2000; Caron et al. 2002) 
and 2 to 5 years for females (Vladykov and Greeley, 1963; Van Eenennaam 
et al., 1996; Stevenson and Secor, 1999). Therefore, the effective 
population size (the number of adults in a population that contribute 
offspring to the next generation) for Atlantic sturgeon is more closely 
related to the number of annually spawning adults, rather than total 
number of reproductively mature adults. In the Southeast, even the 
spawning population in the Altamaha River, believed to be the largest 
spawning population of either the Carolina or South Atlantic DPS, is 
estimated to be smaller than the 500 recommended by Thompson (1991) to 
maintain sufficient genetic variability for adaptation to changing 
environmental conditions. Total adult population sizes are not known 
for any of the rivers in the Carolina or South Atlantic DPS. However, 
using the upper end of our estimated range of abundance (i.e., no more 
than 300 spawning adults per year per river) and the fact that Atlantic 
sturgeon only spawn every 1 to 5 years (i.e., 20 to 100 percent of the 
total adult population is spawning every year), then a conservative 
estimate of the total reproductively mature adult population in 
Southeastern rivers is 300 to 1,500. The Altamaha River would be 
slightly higher than this, and many rivers may be much lower, since we 
don't know how many fewer annual adult spawners than the estimated 300 
are in each river. But these ranges are either below or on the lower 
end of the 1,000 to 10,000 individuals recommended by other authors. It 
is not known if certain riverine populations are at abundances smaller 
than the minimum effective population size of 50 that would prevent 
serious inbreeding (Thompson, 1991). Moreover, in some rivers, spawning 
by Atlantic sturgeon may not be contributing to population growth 
because of lack of suitable habitat and other stressors on juvenile 
survival and development.
    Another factor potentially affecting the size of a viable 
population of Atlantic sturgeon is that they are polyploid. Polyploid 
is a term used to describe cells and organisms containing more than two 
paired (homologous) sets of chromosomes. The polyploidy of Atlantic 
sturgeon might explain the high degree of plasticity displayed by 
sturgeon populations and may provide them with the ability to 
repopulate from very few spawning adults without apparent inbreeding 
depression. However, we have no certainty at this time that this 
genetic characteristic will allow the Atlantic sturgeon to recover from 
such low population numbers, as other listed polyploid Acipenser 
species, such as the Gulf and shortnose sturgeon, have not recovered 
sufficiently to be delisted even after being protected for 20 to 45 
years.
    The concept of a viable population able to adapt to changing 
environmental conditions is critical to Atlantic sturgeon, and the low 
population numbers of every river population in the Carolina and South 
Atlantic DPSs put them in danger of extinction throughout

[[Page 5967]]

their ranges; none of the populations are large or stable enough to 
provide with any level of certainty for continued existence of Atlantic 
sturgeon in this part of its range. While the directed fishery that 
originally drastically reduced the numbers of Atlantic sturgeon has 
been closed, recovery of depleted populations is an inherently slow 
process for a late-maturing species such as Atlantic sturgeon, and they 
continue to face a variety of other threats that contribute to their 
risk of extinction. Their late age at maturity provides more 
opportunities for individual Atlantic sturgeon to be removed from the 
population before reproducing. While a long life-span also allows 
multiple opportunities to contribute to future generations, it also 
results increases the timeframe over which exposure to the multitude of 
threats facing the Carolina and South Atlantic DPS can occur. These 
threats include the loss, reduction, and degradation of habitat 
resulting from dams, dredging, and changes in water quality parameters 
(such as depth, temperature, velocity, and DO). Even with a moratorium 
on directed fisheries, bycatch is a threat to both the Carolina and 
South Atlantic DPSs. Fisheries known to incidentally catch Atlantic 
sturgeon occur throughout the marine range of the species and in some 
riverine waters as well. Because Atlantic sturgeon mix extensively in 
marine waters and may use multiple river systems for spawning, 
foraging, and other life functions, they are subject to being caught in 
multiple fisheries throughout their range. In addition to direct 
mortality, stress or injury to Atlantic sturgeon taken as bycatch but 
released alive may result in increased susceptibility to other threats, 
such as poor water quality (e.g., exposure to toxins). This may result 
in reduced ability to perform major life functions, such as foraging 
and spawning, or may even result in post-capture mortality. While some 
of the threats to the Carolina and South Atlantic DPS have been 
ameliorated or reduced due to the existing regulatory mechanisms, such 
as the moratorium on directed fisheries for Atlantic sturgeon, bycatch 
is currently not being addressed through existing mechanisms. Further, 
water quality continues to be a problem even with existing controls on 
some pollution sources and water withdrawal, and dams continue to 
curtail and modify habitat, even with the Federal Power Act's 
provisions regarding anadromous fish passage.
    We have reviewed the status review report, as well as other 
available literature and information, and have consulted with 
scientists and fishery resource managers familiar with Atlantic 
sturgeon in the Carolina and South Atlantic DPSs. After reviewing the 
best scientific and commercial information available, we find that both 
the Carolina and South Atlantic DPSs are in danger of extinction 
throughout their ranges and thus meet the ESA's definition of an 
endangered species. Atlantic sturgeon populations declined 
precipitously decades ago due to directed commercial fishing. The 
failure of Atlantic sturgeon numbers within the Carolina and South 
Atlantic DPSs to rebound even after the moratorium on directed fishing 
was established in 1998 indicates that impacts and threats from limits 
on habitat for spawning and development, habitat alteration, and 
bycatch are responsible for the risk of extinction faced by both DPSs. 
In addition, the persistence of these impacts and threats points to the 
inadequacy of existing regulatory mechanisms to address and reduce 
habitat alterations and bycatch. We will address the threats of habitat 
alteration, bycatch, and the inadequacy of regulatory mechanisms and 
their contributions to the endangered statuses of the Carolina and 
South Atlantic DPSs in detail in the following sections of this final 
rule.

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

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

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

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

Dams

    Dams are a threat to the Carolina and South Atlantic DPS that 
contributes to their endangered status by the curtailment of the extent 
of available habitat, as well as modifying sturgeon habitat downstream 
through a reduction in water quality. As noted in the status review 
report, dams for hydropower generation, flood control, and navigation 
adversely affect Atlantic sturgeon habitat by impeding access to 
spawning, developmental and foraging habitat, modifying free-flowing 
rivers to reservoirs, physically damaging fish on upstream and 
downstream migrations, and altering water quality in the remaining 
downstream portions of spawning and nursery habitat. Attempts to 
minimize the impacts of dams using measures such as fish passage have 
not proven beneficial to Atlantic sturgeon, as they do not regularly 
use existing fish passage devices, which are generally designed to pass 
pelagic fish. To date, only four Atlantic sturgeon have been documented 
to have passed via a fish lift (three at the St. Stephens fish lift in 
South Carolina and one at the Holyoke Dam in Massachusetts), as these 
passage facilities are not designed to accommodate adult-sized 
sturgeon. While there has not been a large loss of Atlantic sturgeon 
habitat throughout the entire species' range due to the presence

[[Page 5968]]

of dams, individual riverine systems have been severely impacted by 
dams, as access to large portions of historical sturgeon spawning and 
juvenile developmental habitat has been eliminated or restricted. The 
ASSRT used GIS tools and dam location data collected by Oakley (2003) 
as reference points for river kilometer measurements to map historical 
rivers in which Atlantic sturgeon spawned. This information was then 
used to determine the number of kilometers of available habitat. Within 
the Carolina and South Atlantic DPSs, the Cape Fear, Santee-Cooper, and 
St. Johns River systems have lost greater than 60 percent of the 
habitat historically used for spawning and juvenile development.
    The Cape Fear River has three locks and dams (constructed from 1915 
to 1935) between Wilmington and Fayetteville that are located below the 
fall line; two additional dams, Buckhorn and B. Everette Jordan, are 
located above the fall line. Atlantic sturgeon movement is blocked at 
the first lock and dam located in Riegelwood, North Carolina, which was 
constructed in 1915. Pelagic species can pass over the three locks and 
dams during high water, but the benthic Atlantic sturgeon is not known 
to pass over these three locks/dams. No Atlantic sturgeon have been 
captured upstream of Lock and Dam 1 despite extensive sampling 
efforts (Moser et al., 1998). Exact historical spawning locations are 
unknown in the Cape Fear River, but Atlantic sturgeon spawning is 
generally believed to occur in flowing water between the salt front and 
fall line of large rivers (Borodin, 1925; Leland, 1968; Scott and 
Crossman, 1973; Crance, 1987; Bain et al., 2000). Therefore, sturgeon 
researchers judge the fall line to be the likely upper limit of 
spawning habitat. Using the fall line as a guide, only 36 percent of 
the historical habitat is available to Atlantic sturgeon. In some 
years, the salt water interface reaches the first lock and dam; 
therefore, spawning adults in the Cape Fear River either do not spawn 
in such years or spawn in the major tributaries of the Cape Fear River 
(i.e., Black River or Northeast Cape Fear Rivers) that are not 
obstructed by dams.
    The Santee-Cooper Hydroelectric Project is located in the coastal 
plain of the Santee Basin on the Santee and Cooper Rivers, South 
Carolina. The project was finished in 1942 and includes Lake Marion, 
which is impounded by the Santee Dam (Wilson Dam) on the Santee River 
at rm 87 (rkm 140), and Lake Moultrie, which is impounded by the 
Pinopolis Dam on the Cooper River at rm 48 (rkm 77). Using the fall 
line as the upper region of spawning habitat, it is estimated that only 
38 percent of the historical habitat is available to Atlantic sturgeon 
today. Although a lock and a fish lift operate during the spring at the 
Pinopolis and St. Stephen Dams, respectively, observations of sturgeon 
in the lock and lift are extremely rare (traditional fish passage 
designs are not typically successful for sturgeon). There is no record 
of an adult Atlantic sturgeon being lifted, although three dead 
Atlantic sturgeon were observed in Lake Marion between 1995 and 1997, 
and in 2007, an Atlantic sturgeon entered the St. Stephen fish lift and 
was physically removed and translocated downstream into the Santee 
River (A. Crosby, SCDNR, pers. comm.)
    In addition to blocking access to habitat, dams can degrade 
spawning, nursery, and foraging habitat downstream by reducing water 
quality. Flow, water temperature, and oxygen levels in the Roanoke 
River are affected by the Kerr Dam and the Gaston Dam/Roanoke Rapids 
facilities, which engage in peaking operations. Riverine water flow has 
already been modified by the dam operators during the striped bass 
spawning season to simulate natural flow patterns; these modifications 
undoubtedly benefit Atlantic sturgeon. Regardless of the temporary 
modifications, lower water temperatures resulting from the hypolimnetic 
discharge from Kerr Dam have caused temporal shifts in the spawning 
peaks for both American shad and striped bass and likely have had the 
same impact for other diadromous species, including Atlantic sturgeon 
(ASSRT, 2007). High flows from Kerr Dam during the summer are coupled 
with high ambient temperatures and an influx of swamp water with low 
DO, creating a large, hypoxic plume within the river. Fish kills have 
been documented to occur during this time (ASSRT, 2007), and sturgeon 
are more highly sensitive to low DO (less than 5 milligrams per liter 
(mg/L)) than other fish species (Niklitschek and Secor, 2009a, 2009b). 
Low DO in combination with high temperature is particularly problematic 
for Atlantic sturgeon, and studies have shown that juvenile Atlantic 
sturgeon experience lethal and sublethal (metabolic, growth, feeding) 
effects as DO drops and temperatures rise (Niklitschek and Secor, 
2009a, 2009b; Niklitschek and Secor, 2005; Secor and Gunderson, 1998). 
Therefore, it is likely that dam operations are negatively affecting 
Atlantic sturgeon nursery habitat in the lower Roanoke River.

Dredging

    Dredging is a present threat to both the Carolina and South 
Atlantic DPSs and is contributing to their endangered status by 
modifying the quality and availability of Atlantic sturgeon habitat. 
Riverine, nearshore, and offshore areas are often dredged to support 
commercial shipping and recreational boating, construction of 
infrastructure, and marine mining. Environmental impacts of dredging 
include the direct removal/burial of organisms; turbidity/siltation 
effects; contaminant resuspension; noise/disturbance; alterations to 
hydrodynamic regime and physical habitat; and actual loss of riparian 
habitat (Chytalo, 1996; Winger et al., 2000). According to Smith and 
Clugston (1997), dredging and filling impact important habitat features 
of Atlantic sturgeon as they disturb benthic fauna, eliminate deep 
holes, and alter rock substrates. To reduce the impacts of dredging on 
anadromous fish species, most of the Atlantic states impose work 
restrictions during sensitive time periods (spawning, migration, 
feeding) when anadromous fish are present. NMFS also imposes seasonal 
restrictions to protect shortnose sturgeon populations (where present) 
through Section 7 consultations that may have the added benefit of 
protecting Atlantic sturgeon where the two species co-occur. Within the 
Carolina DPS, dredging operations (including the blasting of rock) on 
the lower Cape Fear River, Brunswick River, and port facilities at the 
U.S. Army's Sunny Point Military Ocean Terminal and Port of Wilmington 
are extensive. To protect diadromous fish, restrictions are placed on 
dredging to avoid sensitive seasons and locations, such as potential 
spawning habitat (February 1 through June 30) and suspected nursery 
grounds (April 1 through September 30). However, while the restrictions 
prevent dredging from occurring when Atlantic sturgeon are expected to 
be present, the effects of dredging on Atlantic sturgeon habitat remain 
long after the dredging has been completed. Moser and Ross (1995) found 
that some of the winter holding sites favored by sturgeon in the lower 
Cape Fear River estuary also support very high levels of benthic 
infauna and may be important feeding stations. Repeated dredging in the 
Cape Fear River can modify sturgeon habitat through the removal or 
burial of benthic infauna in feeding grounds and creation of unsuitable 
substrate in spawning grounds (ASSRT, 2007). Similar habitat 
modifications are occurring in the Cooper River, which flows into 
Charleston Harbor, one of the busiest

[[Page 5969]]

ports on the Atlantic Coast, and is dredged regularly. The river 
channel is maintained by dredging all the way to the Pinopolis Dam. No 
seasonal restrictions are placed on dredging in the Cooper River, 
potentially interrupting spawning activities (ASSRT, 2007). In August 
2011, the USACE published a notice of intent to prepare an EIS to study 
the impacts of potential deepening of Charleston Harbor to accommodate 
much larger container vessels; the project would entail extensive 
dredging (76 FR 50187).
    In the South Atlantic DPS, maintenance dredging in Atlantic 
sturgeon nursery habitat in the Savannah River is frequent, and 
substantial channel deepening took place in 1994. The Georgia Ports 
Authority is seeking to expand its port facility on the Savannah River. 
Within the 1999 Water Resources Development Act, Congress authorized 
the deepening of the Savannah Navigation Channel from the current depth 
of -42 to -48 ft (-12.8 to -14.6 m) mean low water. Hydrodynamic and 
water quality models have been developed to predict changes in water 
quality across depth and throughout the channel. The channel deepening 
is predicted to alter overall water quality (e.g., salinity and DO), 
creating inhospitable foraging/resting habitat in the lower Savannah 
River for sturgeon. The lower Savannah River is heavily industrialized 
and serves as a major shipping port. Nursery habitat in the lower river 
has been heavily impacted by diminished water quality and 
channelization. Reduced DO levels and upriver movement of the salt 
wedge are predicted to result from channel deepening. Currently, USACE 
has entered into formal consultation with NMFS regarding the Savannah 
Harbor Expansion Project, which includes a conference consultation on 
Atlantic sturgeon. Though not yet finalized, the conference 
consultation on Atlantic sturgeon will evaluate whether the adverse 
effects on sturgeon from the expansion will result in jeopardy, and 
consider potential benefits to Atlantic sturgeon from the proposed fish 
passage at NSBL&D that could provide access to 20 miles of potential 
spawning habitat. Sturgeon are highly sensitive to low DO, more so than 
other fish species (Niklitschek and Secor, 2009a, 2009b). Because 
Atlantic sturgeon spawn above the interface between fresh water and 
salt water, the upriver movement of the salt wedge will curtail the 
extent of Atlantic sturgeon habitat in the Savannah River. Dredging 
also commonly occurs within the St. Johns River and has been linked to 
the reduction in submerged aquatic vegetation where Atlantic sturgeon 
likely forage (Jordan, 2002). Though there is currently no resident 
spawning population in the St. Johns, it still provides nursery habitat 
for juvenile Atlantic sturgeon in the South Atlantic DPS (NMFS and 
USFWS, 1998). Access to over 60 percent of the historical sturgeon 
habitat in the St. Johns River has already been curtailed by the 
presence of a dam, and dredging modifies the quality of the remaining 
nursery habitat in the river.

Water Quality

    Degraded water quality is a present threat to the Carolina and 
South Atlantic DPSs and is contributing to their endangered status by 
modifying and curtailing the extent of available habitat for spawning 
and nursery areas. Atlantic sturgeon rely on a variety of water quality 
parameters to successfully carry out their life functions. Low DO and 
the presence of contaminants modify the quality of Atlantic sturgeon 
habitat and in some cases, curtail the extent of suitable habitat for 
life functions. Secor (1995) noted a correlation between low abundances 
of sturgeon during this century and decreasing water quality caused by 
increased nutrient loading and increased spatial and temporal frequency 
of hypoxic conditions. Of particular concern is the high occurrence of 
low DO coupled with high temperatures in the river systems throughout 
the range of the Carolina and South Atlantic DPSs. Sturgeon are more 
highly sensitive to low DO than other fish species (Niklitschek and 
Secor, 2009a, 2009b) and low DO in combination with high temperature is 
particularly problematic for Atlantic sturgeon. Studies have shown that 
juvenile Atlantic sturgeon experience lethal and sublethal (metabolic, 
growth, feeding) effects as DO drops and temperatures rise (Niklitschek 
and Secor, 2009a, 2009b; Niklitschek and Secor, 2005; Secor and 
Gunderson, 1998). Water quality within the river systems in the range 
of the Carolina and South Atlantic DPSs is also negatively impacted by 
contaminants and large water withdrawals.
    For the Carolina DPS, water quality in the Pamlico system, 
especially in the lower Neuse River, is highly degraded (Paerl et al., 
1998; Qian et al., 2000; Glasgow et al., 2001). The entire basin has 
been designated as nutrient-sensitive, and additional regulatory 
controls are being implemented to improve water quality. Both the Neuse 
and Pamlico portions of the estuary have been subject to seasonal 
episodes of anoxia that significantly affect the quality of Atlantic 
sturgeon nursery habitat. CAFOs cause at least some portion of the 
current water quality problems in the Pamlico watershed (Mallin and 
Cahoon, 2003). Farms that produce hogs, turkeys, and chickens have 
proliferated throughout the coastal portion of the basin in the last 
decade, with increases in both aquatic and atmospheric deposition of 
nitrogenous waste products. North Carolina passed a moratorium in 1997 
limiting additional hog operations and is conducting a study of 
measures to address the problem; the moratorium was renewed in 1999 and 
2003. Water quality in the Cape Fear River is poor for aquatic life, 
due largely to industrial development and use, including the Port of 
Wilmington and numerous industrial point-source discharges. Development 
of CAFOs in the coastal portion of the Cape Fear River basin has been 
especially heavy (most concentrated operations of CAFOs occur in the 
Cape Fear River drainage within North Carolina) and contributes to both 
atmospheric and aquatic inputs of nitrogenous contamination, possibly 
causing DO levels to regularly fall below the 5 mg/L state standard 
(Mallin and Cahoon, 2003). In recent years, fish kills have been 
observed, usually as a result of blackwater swamps (with low DO) being 
flushed after heavy rainfall.
    Industrialization also threatens the habitat of the Carolina DPS. 
Paper and steel mills in the Winyah Bay system, which includes the 
Waccamaw, Pee Dee, and Sampit rivers, have impacted water quality. 
Riverine sediment samples contain high levels of various toxins 
including dioxins (NMFS and USFWS, 1998). Though the effects of these 
contaminants on Atlantic sturgeon are unknown, Atlantic sturgeon are 
particularly susceptible to impacts from contaminated sediments due to 
their benthic foraging behavior and long-life span, and effects from 
these compounds on fish include production of acute lesions, growth 
retardation, and reproductive impairment (Cooper, 1989; Sinderman, 
1994). It should be noted that the effect of multiple contaminants or 
mixtures of compounds at sub-lethal levels on fish has not been 
adequately studied. Atlantic sturgeon use marine, estuarine, and 
freshwater habitats and are in direct contact through water, diet, or 
dermal exposure with multiple contaminants throughout their range.
    Habitat used by the South Atlantic DPS in the Savannah River has 
also been modified by mercury contamination (ASSRT, 2007). While water 
quality in the Altamaha River is good at this time, the drainage basin 
is

[[Page 5970]]

dominated by silviculture and agriculture, with two paper mills and 
over two dozen other industries or municipalities discharging effluent 
into the river. Nitrogen and phosphorus concentrations are increasing, 
and eutrophication and loss of thermal refugia are growing concerns for 
the South Atlantic DPS. In the Ogeechee River, the primary source of 
pollution results from non-point sources, which results in nutrient-
loading and decreases in DO. These problems result from the cumulative 
effect of activities of many individual landowners or managers. The 
Ogeechee River Basin Watershed Protection Plan developed by the Georgia 
Environmental Protection Division (GAEPD, 2001b) states that because 
there are so many small sources of non-point loading spread throughout 
the watershed, non-point sources of pollution cannot effectively be 
controlled by state agency permitting and enforcement, even where 
regulatory authority exists. The increases in nutrients and resulting 
decreases in DO are coupled with increases in water temperature 
resulting from clearing of the riparian canopy and increased paved 
surface areas. Downstream sturgeon nursery habitat is compromised 
during hot, dry summers when water flow is minimal, and non-point 
sources of hypoxic waters have a greater impact on the system as 
potential thermal refugia are lost when the aquifer is lowered. Since 
1986, average summer DO levels in the Ogeechee have dropped to 
approximately 4 mg/L (GAEPD, 2001b). Low DO (less than 5 mg/L), most 
likely due to non-point sources, was a common occurrence observed 
during 1998 and 1999 water quality surveys (GAEPD, 2002) in the Satilla 
River, which serves as both spawning and nursery habitat for sturgeon 
in the South Atlantic DPS. The extirpation of the Atlantic sturgeon 
spawning population in the St. Marys River is believed to have been 
caused by reduced DO levels during the summer in the nursery habitat, 
probably due to eutrophication from non-point source pollution (ASSRT, 
2007). Both the St. Marys and St. Johns Rivers continue to be used as 
nursery habitat by Atlantic sturgeon in the South Atlantic DPS; 
however, low DO is a common occurrence during the summer months when 
water temperatures rise. At times, it is so severe in the St. Marys 
that it completely eliminates juvenile nursery habitat during the 
summer (D. Peterson, UGA, pers. comm.)
    Water allocation issues are a growing threat in the Southeast and 
exacerbate existing water quality problems. Taking water from one basin 
and transferring it to another fundamentally and irreversibly alters 
natural water flows in both the originating and receiving basins, which 
can affect DO levels, temperature, and the ability of the basin of 
origin to assimilate pollutants (Georgia Water Coalition, 2006). Water 
allocation issues increasingly threaten to exacerbate the present 
threat of degraded water quality on the endangered status of the 
Carolina DPS. North Carolina is experiencing problems where somewhat 
limited natural availability of water is coupled with high demand or 
competition among water users. Some of the areas in North Carolina 
where this is an emerging issue are the Central Coastal Plain, where 
the Cretaceous aquifers have a relatively slow recharge rate; the 
headwater areas of the Piedmont river basins, where streamflows are 
greatly reduced during dry weather; and some areas near the coast and 
on the Outer Banks, where the natural availability of fresh water is 
limited (NCDENR, 2001a). Interbasin water transfers are increasingly 
being looked at to deal with the inadequate water availability. In 
1993, the North Carolina Legislature adopted the Regulation of Surface 
Water Transfers Act (G.S. Sec.  143-215.22I). This law regulates large 
surface water transfers between river basins by requiring a certificate 
from the North Carolina Environmental Management Commission. The act 
has been modified several times since it was first adopted, most 
recently in 2007 when G.S. Sec.  143-215.22I was repealed and replaced 
with G.S. Sec.  143-215.22L. A transfer certificate is required for a 
new transfer of 2 mgd (7,600 m\3\pd) or more and for an increase in an 
existing transfer by 25 percent or more (if the total including the 
increase is more than 2 mgd). Certificates are not required for 
facilities that existed or were under construction prior to July 1, 
1993, up to the full capacity of that facility to transfer water, 
regardless of the transfer amount.
    The North Carolina Department of Environment and Natural Resources 
reports that 20 facilities, with a combined average (not maximum) daily 
transfer of 66.5 mgd (252,000 m\3\pd), were grandfathered in when G.S. 
Sec.  143-215.22I was enacted (NCDENR, 2009). Since then, five 
additional facilities have received certificates to withdraw up to a 
combined maximum total of 167.5 mgd (634,000 m\3\pd). The most 
significant certified interbasin transfer in this group is the 
withdrawal of 60 mgd (227,000 m\3\pd) of water from Lake Gaston (part 
of the Roanoke River Basin) by Virginia Beach, Virginia. Virginia Beach 
began pumping in 1998 following a very lengthy and contested FERC 
approval process, during which North Carolina opposed the withdrawals 
(NCDENR, 2001b). Certificates are pending for three facilities, 
totaling almost 60 mgd (227,000 m\3\pd). This includes the Kerr Lake 
Regional Water System (KLRWS), a regional provider of drinking water. 
The KLRWS has an existing, grandfathered, surface water transfer 
capacity of 10 mgd (38,000 m\3\pd). The grandfathered capacity allows 
the system to move water from the Roanoke River Basin (Kerr Lake) to 
sub-basins of the Tar-Pamlico River Basin. On February 18, 2009, KLRWS 
submitted a Notice of Intent to Request an Interbasin Transfer 
Certificate to the Environmental Management Commission. In that notice, 
KLRWS requested to increase the authorized transfer from 10 mgd to 24 
mgd (38,000 m\3\pd to 91,000 m\3\pd), and to transfer 2.4 mgd (9,100 
m\3\pd) from the Roanoke River Basin to the Neuse River Basin. These 
transfer amounts are based on water use projections to the year 2040.
    Water allocation issues also increasingly threaten to exacerbate 
the present threat of degraded water quality on the endangered status 
of the South Atlantic DPS. Water allocation issues are occurring on the 
Atlantic Coast of South Carolina and Georgia (Ruhl, 2003). This area is 
served by five major rivers--the Savannah, Altamaha (including its two 
major tributaries, the Oconee and Ocmulgee rivers), Ogeechee, Satilla, 
and St. Marys Rivers. A 2006 study by the Congressional Budget Office 
(CBO) reported that Georgia had the sixth highest population growth 
(26.4 percent) in the nation, followed by Florida (23.5 percent) (CBO, 
2006). A report from UGA states that the per capita water use in 
Georgia has been estimated to be 8 to 10 percent greater than the 
national average, and 17 percent higher than per capita use in 
neighboring states (UGA, 2002). Water shortages have already occurred 
and are expected to continue due to increasing periods of drought 
coupled with the rapid population growth expected in the region over 
the next 50 years (Cummings et al., 2003). Two of the largest and most 
rapidly expanding urban areas in the Savannah River basin, Augusta-
Richmond County and Savannah, currently utilize both ground water and 
surface water for drinking water uses (GAEPD, 2001a). Surface water use 
in the Savannah River basin is expected to increase in the near future, 
due to a population increase in the basin. Predictions for 2050 
estimate

[[Page 5971]]

the population will increase to nearly 900,000 (GAEPD, 2001a). It is 
important to note that the two water supply sources are not 
independent, because ground water discharge to streams is important in 
maintaining dry-weather flow. Thus, withdrawal of ground water also 
results in reduction in surface water flow.
    The Vogtle Electric Generating Plant consists of two nuclear 
reactors and currently uses up to 64 mgd of water from the Savannah 
River to generate power. In March 2008, the Southern Nuclear Operating 
Company applied to the Nuclear Regulatory Commission for a license to 
build two additional nuclear reactors at the plant, increasing the 
potential water usage to 80 mgd. Up to 100 mgd (379,000 m\3\pd) of 
Savannah River water may be withdrawn to support the growth of South 
Carolina communities located outside of the Savannah River basin, such 
as Greenville and Beaufort County (Spencer and Muzekari, 2002). While 
Georgia has laws restricting interbasin transfers of water, South 
Carolina has yet to adopt stream flow protections and does not regulate 
surface water withdrawals (Rusert and Cummings, 2004). Savannah has 
been withdrawing water from its coastal aquifer since the city became 
established. However, Savannah has grown to the point that the aquifer 
has been depleted over 100 ft (31 m) beneath the city due to growth and 
increased water usage. This decrease in aquifer storage water has 
resulted in salt water intrusion into the water wells used by Hilton 
Head, just north of Savannah. Currently, five of Hilton Head's 12 wells 
are unusable and the problem is expected to escalate if no action is 
taken to prevent further salt water intrusion. The South Carolina team 
on the Savannah River Basin Advisory Group has begun looking at 
withdrawing surface water from the Savannah River to ease the aquifer 
problem (Massey, 2007; Spencer and Muzekari, 2002).
    New surface water withdrawal permits in the Savannah, Ogeechee, and 
Altamaha Rivers pose potential threats to water quality in those rivers 
(Alber and Smith, 2001). Approximately 126,500 people depend on the 
Altamaha basin for water. The Ocmulgee River, a tributary of the 
Altamaha, is located in North Georgia and passes through Atlanta and 
Macon before joining the Altamaha River. Of the seven river basins in 
Georgia, the Ocmulgee River Basin has the highest population of 
1,714,722 people. The Ocmulgee River Basin is home to a diverse 
industrial and attraction base, from agriculture to defense. It has the 
highest agriculture production and the most agricultural water 
withdrawal permits in Georgia (Fisher et al., 2003).
    It is not known how much water is already being removed from rivers 
utilized by the South Atlantic DPS for spawning and nursery habitat 
because there is little information concerning actual withdrawals and 
virtually no information concerning water discharges. This is 
particularly the case for municipal and industrial uses because water 
use permits are not required for withdrawals less than 100,000 gpd (379 
m\3\pd) (Cummings et al., 2003) and discharge permits are not required 
unless discharge contains selected toxic materials. Agricultural water 
use permits are not quantified in any meaningful way, thus neither 
water withdrawals nor return flows are measured (Fisher et al., 2003). 
Large withdrawals of water (such as those for municipal use) result in 
reduced water quality (altered flows, higher temperatures, and lowered 
DO), and reduced water quality is already contributing to the 
endangered status of the South Atlantic DPS. Therefore, water 
withdrawals from the rivers in the range of the South Atlantic DPS, 
which are highly likely to occur based on current water shortages and 
increasing demand, threaten to exacerbate water quality problems that 
are currently modifying and curtailing Atlantic sturgeon habitat in the 
South Atlantic DPS.

Climate Change

    Climate change threatens to exacerbate the effects of modification 
and curtailment of Atlantic sturgeon habitat caused by dams, dredging, 
and reduced water quality on the endangered status of the Carolina and 
South Atlantic DPSs. A major advance in climate change projections is 
the large number of simulations available from a broader range of 
climate models, run for various emissions scenarios. The IPCC reports 
in its technical paper ``Climate Change and Water'' that best-estimate 
projections from models indicate that decadal average warming over each 
inhabited continent by 2030 (i.e., over the next 20-year period) is 
insensitive to the choice of emissions scenarios and is ``very likely'' 
to be at least twice as large (around 0.36 degrees Fahrenheit or 0.2 
degrees Celsius per decade) as the corresponding model-estimated 
natural variability during the 20th century (IPCC, 2008). Continued 
greenhouse gas emissions at or above current rates under non-mitigation 
emissions scenarios would cause further warming and induce many changes 
in the global climate system during the 21st century, with these 
changes ``very likely'' to be larger than those observed during the 
20th century. In addition, the IPCC expects the rate of warming to 
accelerate in the coming decades. Because 20 years is equal to at least 
one generation of Atlantic sturgeon (ASSRT, 2007), and possibly 
multiple generations in the Southeast where Atlantic sturgeon may 
mature as early as 5 years (Smith et al., 1982), the modifying effects 
of climate change over the next 20 years on vital parameters of the 
Carolina and South Atlantic DPS's habitat will occur on a scale 
relevant to their endangered status. Researchers anticipate that the 
frequency and intensity of droughts and floods will change across the 
nation (CBO, 2006). The IPCC report states that the most important 
societal and ecological impacts of climate change in North America stem 
from changes in surface and groundwater hydrology (IPCC, 2008).
    Both the Carolina and South Atlantic DPSs are within a region the 
IPCC predicts will experience overall climatic drying. Since the status 
review report was completed, the Southeast experienced approximately 3 
years of drought. During this time, South Carolina experienced drought 
conditions that ranged from moderate to extreme (South Carolina State 
Climatology Office, 2008). From 2006 until mid-2009, Georgia 
experienced the worst drought in its history. In September 2007, many 
of Georgia's rivers and streams were at their lowest levels ever 
recorded for the month, and new record low daily streamflows were 
recorded at 15 rivers with 20 or more years of data in Georgia (USGS, 
2007). The drought worsened in September 2008. All streams in Georgia 
except those originating in the extreme southern counties were 
extremely low. While Georgia has periodically undergone periods of 
drought--there have been 6 periods of drought lasting from 2 to 7 years 
since 1903 (USGS, 2000)--drought frequency appears to be increasing 
(Ruhl, 2003). Abnormally low stream flows restrict access to habitat 
areas, reduce thermal refugia, and exacerbate water quality issues, 
such as water temperature, reduced DO, nutrient levels, and 
contaminants.
    The Carolina and South Atlantic DPSs are already threatened by 
reduced water quality resulting from dams, inputs of nutrients, 
contaminants from CAFOs, industrial activities, and non-point sources, 
and interbasin transfers of water. The IPCC report projects with high 
confidence that higher water temperatures and changes in extremes in 
this region, including floods and

[[Page 5972]]

droughts, will affect water quality and exacerbate many forms of water 
pollution--from sediments, nutrients, dissolved organic carbon, 
pathogens, pesticides, and salt, as well as thermal pollution, with 
possible negative impacts on ecosystems. In addition, sea-level rise is 
projected to extend areas of salinization of groundwater and estuaries, 
resulting in a decrease of freshwater availability for humans and 
ecosystems in coastal areas. Some of the most populated areas of this 
region are low-lying, and the threat of salt water entering into its 
aquifers with projected sea-level rise is a concern (U.S. Global 
Research Group, 2004). Existing water allocation issues would be 
exacerbated, leading to an increase in reliance on interbasin water 
transfers to meet municipal water needs, further stressing water 
quality. Dams, dredging, and poor water quality have already modified 
and curtailed the extent of suitable habitat for Atlantic sturgeon 
spawning and nursery habitat. Changes in water availability (depth and 
velocities) and water quality (temperature, salinity, DO, contaminants, 
etc.) in rivers and coastal waters inhabited by Atlantic sturgeon 
resulting from climate change will further modify and curtail the 
extent of suitable habitat for the Carolina DPS. Effects could be 
especially harmful since these populations have already been reduced to 
low numbers. The spawning populations within the Carolina DPS are all 
estimated to number fewer than the 500 recommended by Thompson (1991) 
to maintain sufficient genetic variability for adaptation to changing 
environmental conditions, and certainly smaller than the 1,000 to 
10,000 recommended by other authors (Salwasser et al., 1984; Belovsky, 
1987; Soul[eacute], 1987; Thomas, 1990).
    The ASSRT concluded that habitat modifications due to the placement 
of dams, dredging, and degraded water quality present a moderate to 
moderately high threat to all river populations within the Carolina 
DPS, with the exception of the Roanoke River. For the South Atlantic 
DPS, the ASSRT concluded that dredging and water quality issues are 
having a moderately low to moderate impact on the river populations. We 
believe that the modification and curtailment of Atlantic sturgeon 
habitat resulting from dams, dredging, and degraded water quality is 
contributing to the endangered status of both the Carolina and South 
Atlantic DPSs. Further, additional threats arising from water 
allocation and climate change threaten to exacerbate water quality 
problems already present throughout the range of both DPSs. Existing 
water allocation issues will likely be compounded by population growth 
and potentially climate change. Climate change is also predicted to 
elevate water temperatures and exacerbate nutrient-loading, pollution 
inputs, and lower DO, all of which are current threats to the Carolina 
and South Atlantic DPSs.

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

    Overutilization for commercial purposes is a factor that 
contributed to the historical drastic decline in Atlantic sturgeon 
populations throughout the species' range. Data on the total weight of 
Atlantic and shortnose sturgeon harvested were collected by each state 
starting in 1880, and in the late 1800s commercial fisheries were 
landing upwards of 6,800,000 lbs (3,084 kg) of sturgeon annually 
(Murawski and Pacheco, 1977). By 1905, only 15 years later, this number 
had dropped to 20,000 lbs (9,071 kg). The population sizes were then 
further reduced by overfishing in the 1900s, when the landings 
drastically fell to a total of 215 lbs (98 kg) in 1990 (Stein et al., 
2004b). The total landings recorded include shortnose sturgeon as well 
as Atlantic sturgeon; however, the harvest is thought to have been 
primarily Atlantic sturgeon due to the large mesh-size nets commonly 
used at that time. A complete moratorium on possession of Atlantic 
sturgeon has been implemented in both state and Federal waters since 
1998 to eliminate the threat of directed catch and incentives to retain 
Atlantic sturgeon bycatch. However, Atlantic sturgeon are taken as 
bycatch in various commercial fisheries along the entire U.S. Atlantic 
Coast within inland, coastal, and Federal waters. While Atlantic 
sturgeon caught incidentally can no longer be legally landed, bycatch 
may still be a threat if fish are injured or killed in the act of being 
caught.
    Based on their life history, Atlantic sturgeon are more sensitive 
to fishing mortality than other coastal fish species. They are a long-
lived species, have an older age at full maturity, have lower maximum 
fecundity values, with 50 percent of the lifetime egg production for 
Atlantic sturgeon occurring later in life (Boreman, 1997). Boreman 
(1997) looked at the relationship between fishing mortality (F) and the 
corresponding percentage of the maximum lifetime egg production of an 
age 1 female. The F50 is the fishing rate at which a cohort 
produces 50 percent of the eggs that it would produce with no fishing 
effort. Boreman calculated a sustainable fishing (bycatch) mortality 
rate of 5 percent per year for adult Atlantic sturgeon based on the 
F50. While many fishery models use a less conservative 
target fishing level of F30 or F20, the more 
conservative choice of F50 for Atlantic sturgeon is 
justified by their late age at maturity and because they are periodic 
spawners (Boreman, 1997).
    We currently do not have all the data necessary to determine 
whether the percentage of Atlantic sturgeon populations lost annually 
due to bycatch mortality exceeds a sustainable rate of 5 percent per 
year suggested by Boreman (1997), because we do not have abundance 
estimates for the Carolina and South Atlantic DPSs and bycatch remains 
highly underreported. However, bycatch is occurring throughout the 
range of the Carolina and South Atlantic DPSs of Atlantic sturgeon, and 
the bycatch mortality associated with the dominant fishing gear in the 
Southeast is relatively high. All the spawning populations in the 
Southeast Region are quite small, which means that the loss of a small 
number of fish to bycatch mortality could exceed the sustainable rate 
of 5 percent per year. Bycatch of Atlantic sturgeon in commercial 
fisheries is presently a threat to the Carolina and South Atlantic 
DPSs, and we believe it is contributing to their endangered status.
    Mortality rates of Atlantic sturgeon taken as bycatch in various 
types of fishing gear range between 0 and 51 percent, with the greatest 
mortality occurring in sturgeon caught by sink gillnets (Stein et al., 
2004b; ASMFC, 2007). The ASMFC Sturgeon Technical Committee (TC) 
determined that bycatch losses principally occur in sink gillnet 
fisheries, though there may be losses in the trawl fisheries, as well. 
Atlantic sturgeon are particularly vulnerable to sink gillnets due to 
their demersal nature (tendency to be at the bottom of the water 
column). If the nets are not tended often enough, it can be detrimental 
to the sturgeon, resulting in suffocation because their operculum or 
gills can be held closed by the net. Using the NMFS ocean observer 
dataset, the NMFS Northeast Fisheries Science Center (NEFSC) estimated 
that bycatch mortality of sturgeon captured in sink gillnets between 
2001 and 2006 was 13.8 percent (ASMFC, 2007). The ASMFC Sturgeon TC 
notes that any estimate of bycatch from the NMFS ocean observer dataset 
will be an underestimate because bycatch is under-reported in state 
waters and there is limited observer coverage in fisheries potentially 
affecting Atlantic sturgeon in the South Atlantic (North Carolina to 
Florida) Federal waters. In addition,

[[Page 5973]]

bycatch mortality estimates do not account for post-capture mortality. 
The 13.8 percent mortality rate for sink gillnets estimated by the 
NEFSC may further underestimate the mortality rate in sink gillnets in 
the Carolina and South Atlantic DPSs because bycatch survival is 
greater in colder water temperatures of the north compared to warmer 
southern waters occupied by these DPSs (ASSRT, 2007). Mortality of 
Atlantic sturgeon captured by trawls seems to be low, with most surveys 
reporting 0 percent mortality. The State of North Carolina has 
documented bycatch in over 958 tows conducted by commercial shrimp 
trawlers working in North Carolina with no Atlantic sturgeon reported; 
there have also been no Atlantic sturgeon captured in the 528 blue crab 
trawl tows examined since 1990. However, these studies do not include 
post-capture mortality, and studies of mortality from trawl fisheries 
conducted in the south, where tow times are longer and water 
temperatures are higher, are very limited.
    Sink gillnets and trawls are used throughout riverine, estuarine, 
and marine waters in the range of the Carolina DPS to target a wide 
array of finfish and shellfish. Data on Atlantic sturgeon bycatch in 
Albemarle and Pamlico Sound commercial fisheries come from three 
sources: (1) NCDMF IGNS that were initially designed to monitor striped 
bass; (2) NCDMF Observer Program; and (3) NC Sea Grant Fishery Resource 
Grant project that examined sturgeon bycatch in the flounder fishery 
(White and Armstrong, 2000). The Albemarle and Pamlico IGNS used sink 
and drift gillnets, similar to those used by the shad/herring and the 
flounder fisheries. Overall bycatch mortality in the Albemarle Sound 
IGNS from 1990-2009 was 3 percent. Mortality rates in Albemarle Sound 
varied annually from 0-19 percent, and also varied by month (0-7 
percent) and by mesh size (0-100 percent). Overall bycatch mortality in 
the Pamlico Sound IGNS from 2001-2009 was 10 percent, and ranged from 
0-100 percent annually, 0-25 percent by month, and 0-25 percent by mesh 
size. In the Pamlico, Pungo, and Neuse Rivers IGNS, overall bycatch 
mortality between 2000 and 2009 was 12 percent, ranging annually from 
0-50 percent. Bycatch mortality rate also varied by month (0-67 
percent) and by mesh size (0-33 percent). Since 2001, the NCDMF 
Observer Program has observed approximately 3,031,356 yards of large 
and small mesh gill nets and collected 110 Atlantic sturgeon with an 
overall bycatch mortality of 6 percent (7 fish). Mortalities ranged 
from 0 percent in 2008 to a high of 12 percent in 2004. Overall bycatch 
mortality in large mesh nets was 5 percent and ranged between 0 and 8 
percent. Overall bycatch mortality in small mesh nets was 17 percent, 
ranging from 0-100 percent. Commercial fishermen in Albemarle and 
Pamlico Sound and Cape Fear River reported catches of zero to two 
sturgeon per fishery per year. However, White and Armstrong (2000) 
reported that sturgeon bycatch in flounder gillnets fished from 1998 to 
2000 by a single fishermen in the Albemarle Sound flounder fishery 
included the capture of 131 Atlantic sturgeon. Of the 131 Atlantic 
sturgeon captured, no mortalities were reported, although four 
individuals were noted as having minor injuries. These data indicate 
that underreporting of sturgeon bycatch is occurring in this area.
    A sink gillnet survey conducted in the Cape Fear River by 
University of North Carolina at Wilmington personnel noted that 25 
percent of sturgeon intercepted (22 of 88 caught) were killed. The 
gillnets were set one day, checked the second, and retrieved on the 
third. The greatest mortality occurred during periods of highest water 
temperature (Moser et al., 1998). This survey was continued by the 
NCDMF, and it has reported mortality rates of 37 percent overall. 
Similar to earlier findings, mortality was greatest during the summer 
months (June through August), averaging 49 percent (34 of 69 sturgeon 
died) (ASSRT, 2007). This study has been discontinued due to lack of 
funding. There are no estimates of bycatch in fishery dependent 
surveys.
    Winyah Bay is currently fished for American shad using both sink 
and drift gillnets. This fishery has an estimated bycatch of 158 
Atlantic sturgeon per year, of which 16 percent (25 fish) die and 
another 20 percent are injured to some degree, although this estimate 
is dated (Collins et al., 1996). Shad fishers also operate within the 
rivers, but neither fishing effort nor average numbers of Atlantic 
sturgeon encountered are known. Poaching of adult Atlantic sturgeon has 
been reported from the Winyah Bay area in recent years. Carcasses of 
large females have been found with the ovaries (caviar) removed.
    The mouth of the Santee River, just south of Winyah Bay, has the 
largest shad landings in the Southeast (ASSRT, 2007), likely resulting 
in mortality and injury of sturgeon similar to that in the Winyah Bay 
shad fishery. Upriver bycatch levels are unknown. The Cooper River also 
has an active hook and line shad fishery because gillnets are 
restricted (ASSRT, 2007).
    The two largest commercial fisheries likely to capture Atlantic 
sturgeon from the South Atlantic DPS in the state waters of South 
Carolina and Georgia are the American shad gillnet and shrimp trawl 
fisheries. Studies in Georgia on commercial gillnet fisheries for 
American shad (Alosa sapidissima) showed that they accounted for 52 
percent of Atlantic sturgeon bycatch and the shrimp trawl fisheries 
accounted for 39 percent (Collins et al., 1996). The American shad 
fisheries use sink gillnets and drift gillnets. Collins et al. (1996) 
documented a 16 percent capture-induced mortality rate for sturgeon in 
the American shad fishery.
    There was a directed commercial fishery for Atlantic sturgeon in 
the ACE Basin prior to the 1985 fishery closure. The commercial 
sturgeon fishery operated in the lower and middle portions of both the 
Combahee and Edisto rivers. Commercial shad fisheries captured some 
juvenile Atlantic sturgeon, but most fishermen operate upriver from the 
areas of greatest abundance during that time of year. The shrimp trawl 
fishery in St. Helena Sound also captures juveniles, as evident from 
tag returns (ASSRT, 2007).
    Although a few commercial sturgeon fishers apparently operated in 
the Port Royal river system prior to 1985, the landing of only one 
Atlantic sturgeon has been recorded (Smith and Dingley, 1984). Little, 
if any, shad fishing takes place in this system. It is not known 
whether there is any significant bycatch in the shrimp trawl fishery in 
this area.
    During 1989 to 1991, the commercial shad gillnet fishery's bycatch 
in the Savannah River included more endangered shortnose sturgeon than 
juvenile Atlantic sturgeon. Collins et al. (1996) reported that two 
commercial fishermen collected 14 Atlantic and 189 shortnose sturgeon 
over the period of 1990 to 1992. It appears that abundance within the 
Savannah River is extremely low, as evidenced from low bycatch and 
reported captures over the last 15 years. Thus, bycatch may be a more 
serious impact if abundance is low and fishing effort is high.
    Bycatch in the shad fishery in the Ogeechee River is a heightened 
concern because evidence suggests that this Atlantic sturgeon 
population is stressed and that complete recruitment failure has 
occurred in some years (ASSRT, 2007). Bycatch mortality in the 
estuarine and lower river shad fishery is suspected to be high, but no 
estimates of take are available (ASSRT, 2007).
    Estimated annual total bycatch of Atlantic and shortnose sturgeon 
in the

[[Page 5974]]

shad gillnet fishery in the tidal portion of the Altamaha River during 
1982 and 1983 averaged 372 sturgeon (Collins et al., 1996). The 
mortality rate of sturgeon taken as bycatch in the Altamaha River 
during this time period was not determined. During a study conducted 
between 1986 and 1992 in the Altamaha River, 97 of 1,534 tagged 
juvenile Atlantic sturgeon were recaptured primarily by shad gillnets 
(52 percent) and shrimp trawls (39 percent) (Collins et al., 1996). 
Juvenile Atlantic sturgeon from the Altamaha are relatively abundant in 
comparison to other rivers in the region, so a large percentage of the 
individuals in winter mixed-stock aggregations on the shelf are likely 
from this river. Most sturgeon occurring as shrimp trawl bycatch are 
from mixed-stock aggregations. Using the percentages of Atlantic and 
shortnose sturgeon from the 1986 to 1992 Altamaha catch data and 
applying them to the 1982 and 1983 total estimated sturgeon bycatch, it 
is expected that 89 percent (331 fish) of the catch consisted of 
Atlantic sturgeon (ASSRT, 2007). Also, assuming a 10 percent bycatch 
mortality rate for Atlantic sturgeon from drift nets (Stein et al., 
2004b), the dominant gear used in the shad gillnet fishery, it is 
estimated that 33 Atlantic sturgeon would die each year from the 
fishery. However, in their latest compliance report to the ASMFC, GADNR 
noted that less than 10 fish per year were estimated to have been 
captured in the Altamaha River anchored gillnet fishery during a 3-year 
study. All fish were juveniles and no injury or mortality was 
documented. GADNR also noted the season for gillnetting shad occurs 
while adults are at sea and juveniles are in the lower parts of the 
estuary. Since the 2007 status review, which ranked bycatch as a 
moderate threat in the Altamaha, the Georgia Board of Natural Resources 
has prohibited the use of gillnets for shad fishing in a large portion 
of the Altamaha.
    Shad fishing effort is low in the Satilla River due to an 
apparently depleted shad population. However, because the Atlantic 
sturgeon population is depleted and highly stressed, any bycatch 
mortality could have an impact on the population (ASSRT, 2007).
    The ASSRT concluded that bycatch presents a moderate threat to the 
Carolina DPS, while the threat of bycatch to the South Atlantic DPS was 
characterized as moderately low in each of the populations, with the 
exception of the Altamaha, where bycatch was deemed to pose a moderate 
threat, though we note again Georgia's prohibition of shad gillnet 
fishing in a large portion of the Altamaha since the status review. 
Historical overutilization of Atlantic sturgeon from directed fishing 
caused initial severe declines in Atlantic sturgeon populations in the 
southeast, from which they have never rebounded. Further, we believe 
continued bycatch of Atlantic sturgeon in commercial fisheries is an 
ongoing impact to the Carolina and South Atlantic DPSs that is 
contributing to their endangered status. Atlantic sturgeon are 
particularly vulnerable to being caught in sink gillnets and fisheries 
using this type of gear account for most recorded Atlantic sturgeon 
bycatch. However, little data exist on bycatch in the Southeast, and 
high levels of bycatch underreporting are suspected (ASMFC, 2005; 
ASSRT, 2007; White and Armstrong, 2000). Further, total population 
abundances for the Carolina and South Atlantic DPSs are not available; 
therefore, it is not possible to calculate the percentages of the 
Carolina and South Atlantic DPSs subject to bycatch mortality based on 
the available bycatch mortality rates for individual fisheries. 
However, fisheries known to incidentally catch Atlantic sturgeon occur 
throughout the marine range of the species and in some riverine waters 
as well. Because Atlantic sturgeon mix extensively in marine waters and 
may access multiple river systems, they are subject to being caught in 
multiple fisheries throughout their range. Atlantic sturgeon taken as 
bycatch may suffer immediate mortality. In addition, stress or injury 
to Atlantic sturgeon taken as bycatch but released alive may result in 
increased susceptibility to other threats, such as poor water quality 
(e.g., exposure to toxins and low DO). This may result in reduced 
ability to perform major life functions, such as foraging and spawning, 
or may even result in post-capture mortality. Several of the river 
populations in the South Atlantic DPS (e.g., the Ogeechee and the 
Satilla) are stressed to the degree that any level of bycatch could 
have an adverse impact on the status of the DPS (ASSRT, 2007).

C. Disease or Predation

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

D. Inadequacy of Existing Regulatory Mechanisms

    As a wide-ranging anadromous species, Atlantic sturgeon are subject 
to numerous Federal (U.S. and Canadian),

[[Page 5975]]

state and provincial, and inter-jurisdictional laws, regulations, and 
agency activities. These regulatory mechanisms are described in detail 
in the status review report (see Section 3.4). We believe that the 
inadequacy of regulatory mechanisms to control bycatch and the 
modification and curtailment of Atlantic sturgeon habitat is 
contributing to the endangered status of the Carolina and South 
Atlantic DPSs.
    Current regulatory mechanisms have effectively removed threats from 
legal, directed harvest in the United States, as well as incentives for 
retention of bycatch. The ASMFC was given management authority in 1993 
under the Atlantic Coastal Fisheries Cooperative Management Act 
(ACFCMA) (16 U.S.C. 5101-5108), and it manages Atlantic sturgeon 
through an interstate fisheries management plan (IFMP). The moratorium 
prohibiting directed catch of Atlantic sturgeon was developed as an 
Amendment to the IFMP. The ACFCMA, authorized under the terms of the 
ASMFC Compact, as amended (Pub. L. 103-206), provides the Secretary of 
Commerce with the authority to implement regulations that are 
compatible to ASMFC FMPs in the Exclusive Economic Zone (EEZ) in the 
absence of an approved Magnuson-Stevens FMP. In 1999, it was under this 
authority that a similar moratorium was implemented for Atlantic 
sturgeon in Federal waters. The Amendment includes a stock rebuilding 
target of at least 20 protected mature age classes in each spawning 
stock, which is to be achieved by imposing a harvest moratorium. The 
Amendment requires states to monitor, assess, and annually report 
Atlantic sturgeon bycatch and mortality in other fisheries. The 
Amendment also requires that states annually report habitat protection 
and enhancement efforts. Finally, the Amendment states that each 
jurisdiction with a reproducing population should conduct juvenile 
assessment surveys (including CPUE estimates, tag and release programs, 
and age analysis), and states with rivers that lack a reproducing 
sturgeon population(s) but support nursery habitat for migrating 
juveniles should also conduct sampling.
    While the ASMFC and NMFS have made significant strides in reducing 
the threats from direct harvest and retention of bycatch, those threats 
have not been eliminated, and continued bycatch of Atlantic sturgeon is 
contributing to the endangered status of the Carolina and South 
Atlantic DPSs. Although the FMP contains requirements for reporting 
bycatch, fishery managers, such as the ASMFC Atlantic Sturgeon 
Management Board, widely accept that Atlantic sturgeon bycatch is 
underreported or not reported at all based on research and anecdotal 
evidence (ASMFC, 2005; ASSRT, 2007; White and Armstrong, 2000). 
Abundance estimates are available only for two river systems (the 
Hudson and the Altamaha) even though the FMP states that each 
jurisdiction with a reproducing population should conduct juvenile 
assessment surveys (including CPUE estimates, tag and release programs, 
and age analysis). While the aforementioned mechanisms have addressed 
impacts to Atlantic sturgeon through directed fisheries, there are 
currently no mechanisms in place to address the significant impacts and 
risks posed to Atlantic sturgeon by commercial bycatch.
    State and Federal agencies are actively employing a variety of 
legal authorities to implement proactive restoration activities for 
this species, and coordination of these efforts is being furnished 
through the ASMFC. Due to existing state and Federal laws, water 
quality and other habitat conditions have improved in many riverine 
habitats, although many systems still have DO and toxic contaminants 
issues, and habitat quality and quantity continue to be affected by 
dams, dredging, and/or altering natural flow conditions.
    Though statutory and regulatory mechanisms exist that authorize 
reducing the impact of dams on riverine and anadromous species, such as 
Atlantic sturgeon, and their habitat, these mechanisms have proven 
inadequate for preventing dams from blocking access to habitat upstream 
and degrading habitat downstream. Hydropower dams are regulated by the 
FERC. The Federal Power Act, originally enacted in 1920, provides for 
cooperation between FERC and other Federal agencies, including resource 
agencies, in licensing and relicensing power projects. The Federal 
Power Act authorizes NMFS to recommend hydropower license conditions to 
protect, mitigate damages to, and enhance anadromous fish, including 
related habitat. The Federal Power Act also provides authority for NMFS 
to issue mandatory fishway prescriptions. FERC licenses have a term of 
30 to 50 years, so NMFS' involvement in the licensing process to ensure 
the protection and accessibility of upstream habitat, and to improve 
habitat degraded by changes in water flow and quality from dam 
operations, may only occur twice or thrice a century. The Federal Power 
Act does not apply to non-hydropower dams, such as those operated by 
the Army Corps of Engineers for navigation purposes. Even where fish 
passage currently exists, evidence is rare that it effectively passes 
sturgeon, including Atlantic sturgeon. As mentioned in previous 
sections, dams in the Southeast are currently blocking access to over 
60 percent of the habitat in three rivers with historical and/or 
current spawning Atlantic sturgeon populations (the Cape Fear River and 
Santee-Cooper System in the Carolina DPS and the St. Johns River in the 
South Atlantic DPS), though we are hopeful that NMFS' 2007 fishway 
prescription of passage for sturgeon through the lowest dams on both 
the Santee and Cooper Rivers will be implemented once FERC issues the 
new license for this project in the near future. In addition to the 
loss of important spawning and juvenile developmental habitat upstream, 
dam operations reduce the quality of the remaining habitat downstream 
by affecting water quality parameters (such as depth, temperature, 
velocity, and DO) that are important to Atlantic sturgeon. Therefore, 
the inadequacy of regulatory mechanisms to ensure safe and effective 
upstream and downstream passage to Atlantic sturgeon and prevent 
degradation of habitat downstream from dam operations in riverine 
habitat is contributing to the endangered status of the Carolina and 
South Atlantic DPSs.
    Inadequacies in the regulation of water allocation also impact the 
South Atlantic DPS. Data concerning consumptive water use in this 
region are, at best, very limited. While extensive data exist 
concerning permitted water withdrawals, there is little information 
concerning actual withdrawals and virtually no information concerning 
water discharges. This is particularly the case for municipal and 
industrial uses because water use permits are not required for 
withdrawals less than 100,000 gpd (379 m\3\pd) (Cummings et al., 2003) 
and discharge permits are not required unless discharge contains 
selected toxic materials. Agricultural water use permits are not 
quantified, neither water withdrawals nor return flows are measured 
(Fisher et al., 2003). While several other states have similar 
permitting thresholds, the majority require permits for water 
withdrawals less than 100,000 gpd (379 m\3\pd) and some require a 
permit for any water withdrawal. The present limit in Georgia allows 
access to water in amounts required to satisfy the household needs of 
more than 300 households without a permit (Cummings et al., 2003).
    Fundamental requisites for basin water planning--data for 
historical,

[[Page 5976]]

unimpaired flows in the coastal regions' rivers--do not exist (Fisher 
et al., 2003). There are 125 river gauges in the region's 7 river 
basins. However, 72 of these gauges are inactive, and 28 of the 
remaining 53 gauges do not provide consistent flow information. 
Moreover, historical data from many gauges have gaps, reflecting 
periods (sometimes extending over months) during which the gauge was 
inoperative. Also, there are extensive discharge areas between the last 
gauge in each river system and the point at which the river discharges 
into the ocean--thus, there are potentially large water supplies for 
which no information is available (Fisher et al., 2003).
    Water quality continues to be a problem, even with existing 
controls on some pollution sources. Data required to evaluate water 
allocation issues are either very weak, in terms of determining the 
precise amounts of water currently being used, or non-existent, in 
terms of our knowledge of water supplies available for use under 
historical hydrologic conditions in the region. Current regulatory 
regimes are not sufficiently effective in controlling water allocation 
issues (e.g., no permit requirements for water withdrawals under 
100,000 gpd (379 m\3\pd) in Georgia and no restrictions on interbasin 
water transfers in South Carolina).
    In their status review, the ASSRT ranked the threat from the 
inadequacy of regulatory mechanisms as moderately low to moderate. 
While some of the threats to the Carolina and South Atlantic DPSs have 
been ameliorated or reduced due to the existing regulatory mechanisms, 
such as the moratorium on directed fisheries for Atlantic sturgeon, 
bycatch is currently not being addressed through existing mechanisms. 
Further, water quality continues to be a problem even with existing 
controls on some pollution sources and water withdrawal, and dams 
continue to curtail and modify habitat, even with the Federal Power 
Act.

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

    The ASSRT considered several manmade factors that may affect 
Atlantic sturgeon, including impingement and entrainment, ship strikes, 
and artificial propagation. The vast withdrawal of water from rivers 
that support Atlantic sturgeon populations was considered to pose a 
threat of impingement and entrainment; however, data are lacking to 
determine the overall impact of this threat on sturgeon populations, as 
impacts are dependent on a variety of factors (e.g., the species, time 
of year, location of the intake structure, and strength of the intake 
current). Multiple suspected boat/ship strikes have been reported in 
several rivers. A large number of the mortalities observed in these 
rivers from potential ship strikes have been of large adult Atlantic 
sturgeon. Lastly, potential artificial propagation of Atlantic sturgeon 
was also a concern to ASSRT members, as both stock enhancement programs 
and commercial aquaculture can have negative impacts on a recovering 
population (e.g., fish disease, escapement, outbreeding depression). In 
order to circumvent these potential threats, stock enhancement programs 
follow culture and stocking protocols approved by the ASMFC. Commercial 
aquaculture facilities are expected to maintain disease-free facilities 
and have safeguards in place to prevent escapement of sturgeon into the 
wild. While in at least one instance cultured Atlantic sturgeon have 
gone unaccounted for from a commercial aquaculture facility in Florida, 
this is not considered to be a significant threat, as this was a rare 
event. Mechanisms are in place at all facilities to prevent escapement 
of sturgeon; facilities are all land based, and most are not located in 
close proximity to any Atlantic sturgeon rivers.
    Along the range of Atlantic sturgeon from the Carolina and South 
Atlantic DPSs, most, possibly all, populations are at risk of possible 
entrainment or impingement in water withdrawal intakes for commercial 
uses, municipal water supply facilities, and agricultural irrigation 
intakes. In North Carolina, over two billion gallons of water per day 
were withdrawn from the Cape Fear, Neuse, Tar, and Roanoke rivers in 
1999 by agriculture and non-agricultural industries (NCDENR, 2006). 
Three surveys, included in the 2007 status review, have shown the 
direct impacts of water withdrawal on Atlantic sturgeon: (1) Hudson 
River Utility Surveys, (2) Delaware River Salem Power Plant survey, and 
(3) Edwin I. Hatch Nuclear Power Plant survey. Information on the 
Brunswick Nuclear Power Plant and its impacts on Atlantic sturgeon was 
provided by Progress Energy during the public comment period on the 
proposed listing rule. The Edwin I. Hatch Nuclear power plant (HNP) is 
located 11 miles north of Baxley, Georgia. The HNP uses a closed-loop 
system for main condenser cooling that withdraws from, and discharges 
to, the Altamaha River. Pre-operational drift surveys were conducted 
and only two Acipenser larvae were collected. Entrainment samples at 
HNP were collected for the years 1975, 1976, and 1980, and no Acipenser 
species were observed in the samples (Sumner, 2004). The Brunswick 
Nuclear Power Plant is located on the lower Cape Fear River. An average 
of 55 juvenile Atlantic sturgeon were impinged per year from 1975 to 
1981. Plant modifications were implemented in the early 1980s as part 
of the NPDES permit. A fish diversion was installed in 1981 and a fish 
return system was installed in 1983. Only two impinged juveniles were 
observed between 1982 and 2010 and were returned alive to the river. 
Though most rivers have multiple intake structures which remove 
millions of gallons a day during the spring and summer months, it is 
believed that the migratory behavior of larval sturgeon allows them to 
avoid intake structures, since migration is active and occurs in deep 
water (Kynard and Horgan, 2002). Effluent from these facilities can 
also affect populations, as some facilities release heated water that 
acts as a thermal refuge during the winter months, but drastic changes 
in water temperature have the potential to cause mortality.
    Locations that support large ports and have relatively narrow 
waterways are more prone to ship strikes (e.g., Delaware, James, and 
Cape Fear rivers). One ship strike per 5 years is reported for the Cape 
Fear River within the Carolina DPS. Ship strikes have not been 
documented in any of the rivers within the South Atlantic DPS. While it 
is possible that ship strikes may have occurred that have gone 
unreported or unobserved, the lack of large ship traffic on narrow 
waterways within the range of the DPS may limit potential interactions.
    Artificial propagation of Atlantic sturgeon for use in restoration 
of extirpated populations or recovery of severely depleted wild 
populations has the potential to be both a threat to the species and a 
tool for recovery. Within the range of the Carolina DPS, several 
attempts were made by Smith et al. (1980 and 1981) to hormonally-induce 
spawning and culture Atlantic sturgeon captured in the Atlantic Ocean 
off the Winyah Bay jetties. Fry were produced during each spawning 
attempt, but the fry lived less than a year. As a result of successful 
spawning of Hudson River Atlantic sturgeon from 1993 to 1998, USFWS' 
Northeast Fisheries Center (NEFC) is currently rearing five year-
classes of domestic fish. These fish could potentially be used as 
broodstock for aquaculture operations and stock enhancement, provided 
that there is no risk to wild fish. Aquaculturists along the East 
Coast, including some in North

[[Page 5977]]

Carolina and South Carolina, have contacted the NEFC and expressed 
interest in initiating commercial production of Atlantic sturgeon. In 
2006, La Paz Aquaculture Group was approved by North Carolina state 
resource agencies and ASMFC to produce Atlantic sturgeon for flesh and 
caviar sales. However, their first year of production was halted 
because remnant storms from Hurricane Katrina destroyed their fry 
stock. In August 2006, ASMFC reevaluated the La Paz permit, and voted 
to draft an addendum to allow La Paz to acquire Atlantic sturgeon from 
multiple Canadian aquaculture companies (previously restricted to one 
company), allowing them to resume Atlantic sturgeon culture. Resource 
managers who reviewed the permit found the La Paz facility to pose 
little threat to Atlantic sturgeon or shortnose populations due to the 
facility location (far inland), use of a recirculating system, and land 
application of any discharge (ASSRT, 2007).
    In the range of the South Atlantic DPS, artificial propagation has 
been attempted for the purposes of both restoration and commercial 
profit. The St. Marys Fish Restoration Committee (SMFRC) is working 
with Florida and Georgia to reestablish Atlantic sturgeon in the St. 
Marys River. Efforts are currently underway to refine restoration 
approaches within the system. Phase 1 of the restoration plan includes 
a population and habitat assessment. Field investigations are being 
funded through ESA Section 6 and coordinated through Georgia DNR. The 
State of Florida has been involved in fish sampling and will continue 
to explore and refine sturgeon sampling strategies. Aquatic habitat and 
water quality surveillance work will continue to be accomplished by the 
St. Johns River Water Management District, the Environmental Protection 
Agency, Florida Department of Environmental Protection, USFWS, TNC, and 
the St. Marys River Management Committee. Phase 2 of the plan would 
include experimental transplanting of Atlantic sturgeon to assess 
environmental factors, habitat use at different life-stages, 
contaminants, migration-homing, etc. Upon approval from the ASMFC, the 
SMFRC transferred 12 Atlantic sturgeon from the Altamaha River in 
Georgia to the Bears Bluff National Fish Hatchery in South Carolina. 
The SMFRC hopes to develop and refine captive propagation techniques 
for predictable spawning and provide fish to approved researchers.
    Aquaculturists in South Carolina and Florida have also contacted 
the NEFC and expressed interest in initiating commercial production of 
Atlantic sturgeon through use of the Hudson River broodstock. In 2001, 
the Canadian Caviar Company shipped 18,000 Atlantic sturgeon sac fry to 
the University of Florida. These fry were used to conduct early larval 
and feeding trials. Survivors of these experiments were transferred to 
four aquaculture businesses: (1) Evan's Fish Farm in Pierson, Florida; 
(2) Watts Aquatics in Tampa, Florida; (3) Hi-Tech Fisheries of Florida 
in Lakeland, Florida; and (4) Rokaviar in Homestead, Florida. According 
to information provided by FDACS in August 2011, Evan's Fish Farm is 
the only aquaculture facility still in possession of Atlantic sturgeon. 
They experienced a catastrophic systems failure in 2004 and currently 
have only one Atlantic sturgeon on their premises. The remaining 
Atlantic sturgeon obtained from Canada by Florida aquaculture 
facilities died in captivity.
    The ASSRT ranked the threats from impingement/entrainment, ship 
strikes, and artificial propagation as low for both DPSs, with the 
exception of the threat from ship strikes as moderately low for the 
Carolina DPS. We concur with these rankings and conclude that none of 
these threats are contributing to the endangered status of the DPS.

Current Protective Efforts

    Section 4(b)(1)(A) of the ESA requires the Secretary, when making a 
listing determination for a species, to take into account those 
efforts, if any, being made by any State or foreign nation to protect 
the species. In judging the efficacy of existing protective efforts, we 
rely on the Services' joint ``Policy for Evaluation of Conservation 
Efforts When Making Listing Decisions'' (``PECE;'' 68 FR 15100; March 
28, 2003). The PECE is designed to guide determinations on whether any 
conservation efforts that have been recently adopted or implemented, 
but not yet proven to be successful, will result in recovering the 
species to the point at which listing is not warranted or contribute to 
forming a basis for listing a species as threatened rather than 
endangered. The purpose of the PECE is to ensure consistent and 
adequate evaluation of future or recently implemented conservation 
efforts identified in conservation agreements, conservation plans, 
management plans, and similar documents when making listing decisions. 
The PECE provides direction for the consideration of such conservation 
efforts that have not yet been implemented, or have been implemented 
but have not yet demonstrated effectiveness. The policy is expected to 
facilitate the development by states and other entities of conservation 
efforts that sufficiently improve a species' status so as to make 
listing the species as threatened or endangered unnecessary.
    The Services established two basic criteria in the PECE: (1) The 
certainty that the conservation efforts will be implemented, and (2) 
the certainty that the efforts will be effective. Satisfaction of the 
criteria for implementation and effectiveness establishes a given 
protective effort as a candidate for consideration, but does not mean 
that an effort will ultimately change the risk assessment for the 
species. Through the PECE analysis, the Services ascertain whether the 
formalized conservation effort improves the status of the species at 
the time a listing determination is made.
    We evaluated the current conservation efforts underway to protect 
and recover Atlantic sturgeon in making our listing determination. In 
the 2007 status review report and the proposed listing rule, we 
determined that only the following conservation efforts warrant 
consideration under the PECE for the Carolina and South Atlantic DPSs: 
The 1998 ASMFC FMP and the proposal by the SMFRC to restore Atlantic 
sturgeon to the St. Marys River. In addition, we evaluated North 
Carolina's NCCHPP and designation of AFSAs based on information 
submitted during the public comment period on the proposed listing 
rule.
    The 1998 Amendment to the ASMFC Atlantic Sturgeon FMP strengthens 
conservation efforts by formalizing the closure of the directed 
fishery, and by banning possession of bycatch, eliminating any legal 
incentive to retain Atlantic sturgeon. However, bycatch is known to 
occur in several fisheries (ASMFC, 2007) and it is widely accepted that 
bycatch is underreported (ASMFC, 2005; ASSRT, 2007; White and 
Armstrong, 2000). Contrary to information available in 1998 when the 
Amendment was approved, Atlantic sturgeon bycatch mortality is a major 
stressor affecting the recovery of Atlantic sturgeon, despite actions 
taken by the states and NMFS to prohibit directed fishing and retention 
of Atlantic sturgeon. Therefore, there is considerable uncertainty that 
the Atlantic Sturgeon FMP will be effective in meeting its conservation 
goals. In addition, though the 1998 Amendment contains requirements for 
population surveys, it is highly uncertain these will be implemented, 
as there are limited resources for assessing current abundance of 
spawning females for each

[[Page 5978]]

of the DPSs and to date, abundance estimates have only been completed 
for one river within the range of the two DPSs considered here. For 
these reasons, there is great uncertainty regarding the implementation 
and effectiveness of the intended ASMFC FMP conservation effort for the 
Carolina and South Atlantic DPSs of Atlantic sturgeon.
    The SMFRC is working with Florida and Georgia with the intention of 
reestablishing Atlantic sturgeon in the St. Marys River. Efforts are 
currently underway to refine restoration approaches within the system. 
As discussed in Section E, Phase 1 of the restoration plan includes a 
population and habitat assessment, and Phase 2 includes experimental 
transplanting of Atlantic sturgeon to assess environmental factors, 
habitat use at different life-stages, contaminants, migration-homing, 
etc. Atlantic sturgeon are believed to be extirpated in the St. Marys 
River. This conservation effort may increase our knowledge and 
understanding of Atlantic sturgeon status and habitat conditions in the 
St. Marys River, as well as provide methods for restoring a population 
there in the future. As previously discussed, artificial propagation of 
Atlantic sturgeon for use in restoration of extirpated populations or 
recovery of severely depleted wild populations has the potential to be 
both a threat to the species and a tool for recovery. Because it is in 
the earliest stages of planning, development, and authorization, the 
feasibility of any project or the potential degree of success for this 
effort is unknown. Therefore, the SMRFC efforts do not satisfy the PECE 
policy's standards for certainty of implementation or effectiveness.
    The State of North Carolina adopted the NCCHPP in 2005 and its 
stated goals are: (1) Improving effectiveness of existing rules and 
programs protecting coastal fish habitats; (2) identifying, 
designating, and protecting strategic habitat areas (SHAs); (3) 
enhancing habitat and protecting it from physical impacts; and (4) 
enhancing and protecting water quality. The NCMFC approved SHAs for 
Region 1 (the waters and adjacent wetlands draining into and out of 
Albemarle Sound through Oregon Inlet to the adjoining coastal ocean) in 
North Carolina in January 2009, and is currently evaluating SHAs for 
other regions in North Carolina. SHAs represent priority habitat areas 
for protection due to their exceptional condition or imminent threat to 
their ecological functions supporting estuarine and coastal fish and 
shellfish species and will be incorporated into conservation and 
restoration efforts. One SHA (Bellows Bay to Knotts Island Bay) was 
identified in part due to the nearshore ocean areas that are important 
for Atlantic sturgeon and striped bass and another SHA (Chowan and 
Roanoke Rivers and western Albemarle Sound) may include one of the few 
Atlantic sturgeon spawning habitats in North Carolina. NCDMF also 
provides input to federal and state regulatory agencies of the location 
of habitats used by Atlantic sturgeon. NCDMF and the North Carolina 
Wildlife Resources Commission have designated Anadromous Fish Spawning 
Areas (AFSA) through rules for their respective jurisdictions. While 
these programs have excellent goals of increasing enforcement of 
existing regulations, identifying and protecting habitat important to 
the species, and monitoring these habitats, these actions are still in 
the early stages and it is not clear exactly what protections will be 
given to areas designated as SHAs or AFSAs. Therefore, the efforts 
associated with the NCCHPP and the designation of AFSAs do not satisfy 
the PECE policy's standards for certainty of implementation or 
effectiveness.

Listing Determinations

Carolina DPS

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

South Atlantic DPS

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

Effects of Listing

    Conservation measures provided for species listed as endangered 
under the ESA include recovery actions (16 U.S.C. 1533(f)), critical 
habitat designations, Federal agency consultation requirements (16 
U.S.C. 1536), and prohibitions on taking (16 U.S.C. 1538). Recognition 
of the species' endangered status through listing promotes conservation 
actions by Federal and state agencies, private groups, and individuals.

Identifying Section 7 Consultation Requirements

    Section 7(a)(2) of the ESA requires Federal agencies to consult 
with NMFS to ensure that activities authorized, funded, or carried out 
by those agencies are not likely to jeopardize the

[[Page 5979]]

continued existence of the species or destroy or adversely modify 
critical habitat. We do not know how many section 7 consultations may 
be required for Federal agencies. From 2005 to 2010, there were 108 
informal and 10 formal consultation requests for the shortnose 
sturgeon, a species whose range overlaps with that of Atlantic sturgeon 
in freshwater and estuarine habitats.
    The Carolina and South Atlantic DPSs are distinguished based on 
genetic data and spawning locations. However, extensive mixing of the 
populations occurs in coastal waters. Therefore, the distributions of 
the DPSs outside of natal waters generally overlap with one another, 
and with fish from Northeast river populations. This presents a 
challenge in conducting ESA section 7 consultations because fish from 
any DPS could potentially be affected by a proposed project. Project 
location alone will likely not inform the section 7 biologist as to 
which populations to consider in the analysis of a project's potential 
direct and indirect effects on Atlantic sturgeon and their habitat. 
This will be especially problematic for projects where take could 
occur, because it is critical to know which Atlantic sturgeon 
population(s) to include in the jeopardy analysis. One conservative but 
potentially cumbersome method would be to analyze the total anticipated 
take from a proposed project as if all Atlantic sturgeon came from a 
single DPS and repeat the jeopardy analysis for each DPS the taken 
individuals could have come from. However, recently funded research may 
shed some light on the composition of mixed stocks of Atlantic 
sturgeon, relative to their rivers of origin, in locations along the 
East Coast. The specific purpose of the study is to evaluate the 
vulnerability to coastal bycatch of Hudson River Atlantic sturgeon, 
thought to be the largest stock contributing to coastal aggregations 
from the Bay of Fundy to Georgia. However, the mixed stock analysis 
will also allow NMFS to better estimate a project's effects on 
different components of a mixed stock of Atlantic sturgeon in coastal 
waters or estuaries other than where they were spawned. Results from 
the study are expected by early 2012. Genetic mixed stock analysis, 
such as proposed in this study, requires a high degree of resolution 
among stocks contributing to mixed aggregations and characterization of 
most potential contributory stocks. Fortunately, almost all extant 
populations have been characterized in previous genetic studies, though 
some additional populations will be characterized in this study. 
Genetic testing of mixed stocks will be conducted in eight coastal 
locales in both the Northeast and Southeast Regions. Coastal fisheries 
and sites were selected based on sample availabilities, bycatch 
concerns, and specific biological questions (i.e., real uncertainty as 
to stock origins of the coastal aggregation).

Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 
1532(3)) as: (1) The specific areas within the geographical area 
occupied by a species, at the time it is listed in accordance with the 
ESA, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed upon a determination that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the ESA is no longer necessary.
    Section 4(a)(3)(a) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires 
that, to the extent prudent and determinable, critical habitat be 
designated concurrently with the listing of a species. Section 
4(b)(6)(C)(ii) of the ESA provides for additional time to promulgate a 
critical habitat designation if such designation is not determinable at 
the time of final listing of a species. Designations of critical 
habitat must be based on the best scientific data available and must 
take into consideration the economic, national security, and other 
relevant impacts of specifying any particular area as critical habitat. 
The designation of critical habitat is not determinable at this time 
due to the extensive range of the Carolina and South Atlantic DPSs and 
extremely complex biological and physical requirements of Atlantic 
sturgeon. Although we have gathered information through the status 
review and public comment processes, we currently do not have enough 
information to determine which of these features are essential to the 
conservation of the two DPSs and may require special management 
considerations or protection. We will continue to gather and review 
other ongoing studies on the habitat use and requirements of Atlantic 
sturgeon to attempt to identify these features. Additionally, we need 
more time to gather the information needed to perform the required 
analyses of the impacts of the designation. Once areas containing the 
essential features are identified and mapped, and economic, national 
security, and other relevant impacts are considered, we will publish, 
in a separate rule, a proposed designation of critical habitat for the 
Carolina and South Atlantic DPSs.

Section 9 Take Prohibitions

    ESA section 9(a) and 16 U.S.C. 1538 (a)(1)(B) take prohibitions 
apply to all species listed as endangered. These include prohibitions 
against the import, export, use in foreign commerce, or ``take'' of the 
species. Take is defined as ``to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct.'' These prohibitions apply to all persons subject to the 
jurisdiction of the United States, including in the U.S. or on the high 
seas.

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

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

[[Page 5980]]

activities outside the bounds of normal animal husbandry practices. 
Permits to conduct activities that may result in ``take'' of Atlantic 
sturgeon for scientific purposes or to enhance the propagation or 
survival of the DPSs may be issued under section 10 of the ESA. Such 
permits would be required to authorize take regardless of whether the 
sturgeon were in captivity at the time this final listing rule becomes 
effective, or are collected from the wild after this rule becomes 
effective.
    ESA sections 10(a)(1)(A) and 10(a)(1)(B) provide NMFS with 
authority to grant exceptions to the section 9 take prohibitions. 
Section 10(a)(1)(A) scientific research and enhancement permits may be 
issued to entities (Federal and non-Federal) conducting research that 
involves a take of listed species. We have issued section 10(a)(1)(A) 
research and enhancement permits for other listed species for these 
purposes. ESA section 10(a)(1)(B) incidental take permits may be issued 
to non-Federal entities performing activities that may incidentally 
take listed species. The ESA also provides some exceptions to the 
prohibitions, without permits, for certain antique articles and species 
held in captivity at the time of listing. ESA section 10(h) allows 
antique articles of listed species to be excluded from essentially all 
the ESA prohibitions as long as they are at least 100 years old and 
meet certain other specified conditions. Section 9(b)(1) provides a 
narrow exemption for animals held in captivity at the time of listing: 
those animals are not subject to the import/export prohibition in 
section 9(a)(1)(A) or to protective regulations adopted by the 
Secretary under section 9(a)(1)(G), so long as the holding of the 
species in captivity, before and after listing, is not in the course of 
a commercial activity and does not violate the applicable prohibitions 
under ESA section 9(a)(1). However, 180 days after listing there is a 
rebuttable presumption that the exemption does not apply. Thus, in 
order to apply this exemption, the burden of proof for confirming the 
status of animals held in captivity prior to listing lies with the 
holder. The section 9(b)(1) exemption for captive wildlife would not 
apply to any progeny of the captive animals that may be produced post-
listing.
    Based on the best available information, we believe that the 
following actions will not result in a violation of ESA section 9: (1) 
Take or possession of Atlantic sturgeon acquired lawfully by permit 
issued by NMFS pursuant to section 10 of the ESA, or take in accordance 
with the terms of an incidental take statement in a biological opinion 
pursuant to section 7 of the ESA; (2) Federally approved projects that 
involve activities such as agriculture, managed fisheries, road 
construction, discharge of fill material, stream channelization, or 
diversion for which consultation under section 7 of the ESA has been 
completed and determined not likely to jeopardize the continued 
existence of the Atlantic sturgeon DPS, and when such activity is 
conducted in accordance with any terms and conditions given by NMFS in 
an incidental take statement in a biological opinion pursuant to 
section 7 of the ESA; (3) continued possession of live Atlantic 
sturgeon that were in captivity or in a controlled environment (e.g., 
in aquaria) at the time of this listing, so long as the applicable 
prohibitions under an ESA section 9(a)(1) are not violated; and, (4) 
provision of care for live Atlantic sturgeon that were in captivity at 
the time of this listing.

Policies on Peer Review

    On July 1, 1994, NMFS and USFWS published a series of policies 
regarding listings under the ESA, including a policy for peer review of 
scientific data (59 FR 34270; July 1, 1994), the Office of Management 
and Budget (2004) Bulletin on Peer Review. The intent of the peer 
review policies is to ensure that listings are based on the best 
scientific and commercial data available. We formally solicited the 
expert opinion of three appropriate and independent specialists 
regarding scientific or commercial data or assumptions related to the 
information considered for listing. We conclude that these experts' 
reviews satisfy the requirements for ``adequate [prior] peer review'' 
contained in the Bulletin (sec. II.2.), as well as the Services joint 
policy.

References

    A complete list of the references used in this final rule is 
available on the internet at http://sero.nmfs.noaa.gov/pr/sturgeon.htm.

Classification

National Environmental Policy Act

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

Executive Order 12866, Regulatory Flexibility Act and Paperwork 
Reduction Act

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

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to take into account any 
federalism impacts of regulations under development. It includes 
specific consultation directives for situations where a regulation will 
preempt state law, or impose substantial direct compliance costs on 
state and local governments (unless required by statute). Neither of 
those circumstances is applicable to this final listing determination. 
In keeping with the intent of the Administration and Congress to 
provide continuing and meaningful dialogue on issues of mutual state 
and Federal interest, the proposed rule was provided to the relevant 
agencies in each state in which the Carolina and South Atlantic DPSs 
occur, and these agencies were invited to comment. Their comments were 
addressed with other comments in the ``Public Comments'' section.

Executive Order 12898, Environmental Justice

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

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

    Section 307(c)(1) of the Federal Coastal Zone Management Act (CZMA) 
of 1972 requires that all Federal activities that affect any land or 
water use or natural resource of the coastal zone be consistent with 
the enforceable policies of approved state coastal zone management 
programs to the maximum extent practicable. We have determined that 
this action is consistent to the

[[Page 5981]]

maximum extent practicable with the enforceable policies of approved 
CZMA Programs of each of the states within the range of the two DPSs. 
Letters documenting NMFS' proposed determination, along with the 
proposed rule, were sent to the coastal zone management program offices 
in each affected state. A list of the specific state contacts and a 
copy of the letters are available upon request.
    The North Carolina Department of Coastal Management (NCDCM) 
objected to our consistency determination and identified the following 
three relevant enforceable policies of their approved management 
program with which they believed listing Atlantic sturgeon as 
endangered would be inconsistent: (1) 15A NCAC07H.0203 Management 
Ojective of the Estuarine and Ocean System; (2) 15A NCAC 07H .0206 
Estuarine Waters; and, (3) 15A NCAC 07H .0207 Public Trust Areas. NCDCM 
believes listing Atlantic sturgeon as proposed would be inconsistent 
with their objective of managing Atlantic sturgeon resources in a 
manner that would perpetuate the biological and economic values of 
marine resources within North Carolina's coastal zone because: (1) 
Sampling programs for many fish species would have to be immediately 
terminated, and (2) North Carolina's fishing industry would be affected 
since sampling and/or bycatch of Atlantic sturgeon would constitute 
unpermitted take. NCDCM expressed concern that during the time it takes 
to obtain ESA permits for research and bycatch in fisheries, the 
ability to monitor population trends and comply with data collection 
requirements of ASMFC's FMPs will be curtailed. NCDCM is concerned 
about prohibitions on gear and other hardships on North Carolina 
fisheries, as well as administrative burdens on the state, including 
having to provide observer coverage. NCDCM stated that a finding of 
concurrence with our consistency determination could be made if: (1) 
The listing was delayed until permits for take have been obtained for 
research and fisheries bycatch, and (2) coordination takes place with 
NCDMF and NCWRC to implement a data collection program to further 
examine the listing determination for Atlantic sturgeon.
    Per 15 CFR 930.43(d) of the regulations implementing the CZMA, a 
Federal agency shall not proceed with the activity over the State 
agency's objection unless: (1) The Federal agency has concluded that 
under the ``consistent to the maximum extent practicable'' standard 
described in 15 CFR 930.32, consistency with the enforceable policies 
of the management program is prohibited by existing law applicable to 
the Federal agency, and the Federal agency has clearly described, in 
writing, to the State agency the legal impediments to full consistency 
(See 15 CFR 930.32(a) and 930.39(a)); or, (2) the Federal agency has 
concluded that its proposed action is fully consistent with the 
enforceable policies of the management program, though the State agency 
objects. As we discussed in our letter to NCDCM responding to their 
objection, section 4(b)(1)(A) of the ESA and 50 CFR 424.11(b) of the 
implementing regulations require that listing determinations be made 
solely on the basis of the best scientific and commercial data 
available to us and without reference to possible economic or other 
impacts of such a determination. In addition, sections 4(b)(3)(B) and 
4(b)(6)(A) of the ESA establish mandatory deadlines under the ESA for 
determining whether listing of the species is warranted, and for 
associated rules. Those deadlines were triggered when NMFS received the 
listing petition from the NRDC. Therefore, per 15 CFR 930.43(d)(1), we 
are prohibited from considering the potential consequences, such as 
permitting requirements, increased regulatory responsibilities, and 
hardships on fisheries (e.g., gear restrictions), in our listing 
determination, and we cannot enter into a partnership with NCDMF and 
NCWRC in lieu of listing Atlantic sturgeon. However, we believe these 
partnerships, such as the NMFS-funded section 6 project with NCDMF, 
North Carolina State University, South Carolina Department of Natural 
Resources, and the University of Georgia looking at movements of 
Atlantic and shortnose sturgeon, will play a crucial role in working 
toward conservation and recovery of the species. Further, as discussed 
in this final rule and in our letter to NCDCM, NMFS is taking steps 
that should minimize the potential impacts to the state of North 
Carolina's fishery sampling programs and fishing industry raised by 
NCDCM. For example, NMFS contacted known sturgeon researchers, at the 
time of publication of the proposed rule, requesting information on 
planned research activities to facilitate development of an expedited 
permitting process. We also informed NCDCM, and other North Carolina 
agencies, of the expedited process during a conference call in March 
2011. Further, section 10(a)(1)(B) of the ESA allows NMFS to issue 
permits authorizing incidental take of listed species during the course 
of otherwise lawful activities, such as state fishery survey and 
sampling programs targeting species other than Atlantic sturgeon. 
Section 7 consultations required for any federally-authorized fisheries 
that take Atlantic sturgeon as bycatch would authorize such incidental 
take after ensuring the fishing activity would not jeopardize sturgeon. 
Based on these factors, we concluded pursuant to 15 CFR 930.43(d)(2) 
that this listing rule is consistent with the State's enforceable 
policies listed above that provide for managing the Atlantic sturgeon 
resources in a manner that would perpetuate the biological and economic 
values of marine resources within North Carolina's coastal zone.

List of Subjects in 50 CFR Part 224

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

    Dated: January 24, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator for Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 224 is amended 
as follows:

PART 224--ENDANGERED MARINE AND ANADROMOUS SPECIES

0
1. The authority citation for part 224 continues to read as follows:

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


0
2. In Sec.  224.101 the table in paragraph (a) is amended by adding 
entries for Atlantic Sturgeon-Carolina DPS and Atlantic Sturgeon-South 
Atlantic DPS at the end of the table to read as follows:


Sec.  224.101  Enumeration of endangered marine and anadromous species.

[[Page 5982]]



 
----------------------------------------------------------------------------------------------------------------
                   Species                                                                       Citation(s) for
----------------------------------------------                                 Citation(s)  for      critical
                                                        Where listed                listing          habitat
         Common name          Scientific name                                  determination(s)   designation(s)
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Atlantic Sturgeon--Carolina   Acipenser        The Carolina DPS includes all   [Insert FR page              NA.
 DPS.                          oxyrinchus       Atlantic sturgeon that spawn    number where
                               oxyrinchus.      or are spawned in the           the document
                                                watersheds (including all       begins]; 2/6/12.
                                                rivers and tributaries) from
                                                Albemarle Sound southward
                                                along the southern Virginia,
                                                North Carolina, and South
                                                Carolina coastal areas to
                                                Charleston Harbor. The marine
                                                range of Atlantic sturgeon
                                                from the Carolina DPS extends
                                                from the Hamilton Inlet,
                                                Labrador, Canada, to Cape
                                                Canaveral, Florida. The
                                                Carolina DPS also includes
                                                Atlantic sturgeon held in
                                                captivity (e.g., aquaria,
                                                hatcheries, and scientific
                                                institutions) and which are
                                                identified as fish belonging
                                                to the Carolina DPS based on
                                                genetics analyses, previously
                                                applied tags, previously
                                                applied marks, or
                                                documentation to verify that
                                                the fish originated from
                                                (hatched in) a river within
                                                the range of the Carolina
                                                DPS, or is the progeny of any
                                                fish that originated from a
                                                river within the range of the
                                                Carolina DPS.
Atlantic Sturgeon--South      Acipenser        The South Atlantic DPS          [Insert FR page              NA.
 Atlantic DPS.                 oxyrinchus       includes all Atlantic           number where
                               oxyrinchus.      sturgeon that spawn or are      the document
                                                spawned in the watersheds       begins]; 2/6/12.
                                                (including all rivers and
                                                tributaries) of the ACE
                                                (Ashepoo, Combahee, and
                                                Edisto) Basin southward along
                                                the South Carolina, Georgia,
                                                and Florida coastal areas to
                                                the St. Johns River, Florida.
                                                The marine range of Atlantic
                                                sturgeon from the South
                                                Atlantic DPS extends from the
                                                Hamilton Inlet, Labrador,
                                                Canada, to Cape Canaveral,
                                                Florida. The South Atlantic
                                                DPS also includes Atlantic
                                                sturgeon held in captivity
                                                (e.g., aquaria, hatcheries,
                                                and scientific institutions)
                                                and which are identified as
                                                fish belonging to the South
                                                Atlantic DPS based on
                                                genetics analyses, previously
                                                applied tags, previously
                                                applied marks, or
                                                documentation to verify that
                                                the fish originated from
                                                (hatched in) a river within
                                                the range of the South
                                                Atlantic DPS, or is the
                                                progeny of any fish that
                                                originated from a river
                                                within the range of the South
                                                Atlantic DPS.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2012-1950 Filed 2-3-12; 8:45 am]
BILLING CODE 3510-22-P