Endangered and Threatened Wildlife and Plants: Threatened Status for Southern Distinct Population Segment of North American Green Sturgeon

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: April 7, 2006 (Volume 71, Number 67)]
[Rules and Regulations]
[Page 17757-17766]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ap06-16]

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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 050323081-6079-02; I.D. 031505C]
RIN 0648-AT02

Endangered and Threatened Wildlife and Plants: Threatened Status for
Southern Distinct Population Segment of North American Green Sturgeon

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

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SUMMARY: Following completion of a comprehensive Endangered Species Act
(ESA) Status Review and Update for the North American green sturgeon
(Acipenser medirostris; hereafter, ``green sturgeon''), we, NOAA's
National Marine Fisheries Service (NMFS), published a Proposed Rule to
list the Southern distinct population segment (DPS) of green sturgeon
as threatened on April 6, 2005. After considering public comments on
the Proposed Rule, we are issuing a Final Rule to list the Southern DPS
as a threatened species. NMFS is currently considering issuance of
protective regulations that may be necessary and advisable to provide
for the conservation of the species. With this document we are also
soliciting information that may be relevant to our analysis of
protective regulations and to the designation of critical habitat for
the Southern DPS of green sturgeon. Details of our analyses, their
outcome, and a request for public comment on our proposals will be
published in subsequent Federal Register notices.

DATES: This final rule is effective June 6, 2006. Replies to the
request for information regarding a subsequent ESA section 4(d) Rule
and critical habitat designation must be received by July 5, 2006.

ADDRESSES: You may submit information by any of the following methods:
? E-Mail: GreenSturgeon.Information@noaa.gov.
? Webform at the Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions at that site for submitting comments.
? Fax: 1-562-980-4027, Attention: Melissa Neuman.
? Mail: Submit written information to Chief, Protected
Resources Division, Southwest Region, National Marine Fisheries
Service, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802 4213.
Reference materials regarding this determination can be obtained
via the Internet at: http://www.nmfs.noaa.gov or by submitting
a request to the Assistant Regional Administrator, Protected Resources
Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200,
Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region
(562) 980-4115 or Lisa Manning, NMFS, Office of Protected Resources
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

On June 12, 2001, we received a petition from the Environmental
Protection and Information Center (EPIC), Center for Biological
Diversity, and WaterKeepers Northern California requesting that we list
the green sturgeon as threatened or endangered under the ESA and that
critical habitat be designated for the species concurrently with any
listing determination. On December 14, 2001, we provided notice of our
90-day finding that the petition presented substantial scientific
information indicating that the petitioned action may be warranted and
requested information to assist with a Status Review to determine if
green sturgeon warranted listing under the ESA (66 FR 64793). To assist
in the Status Review, we formed a Biological Review Team (BRT)
comprised of scientists from our Northwest and Southwest Fisheries
Science Centers and from the United States Geological Survey (USGS). We
also requested technical information and comments from state and tribal
co-managers in California, Oregon, and Washington, as well as from
scientists and individuals having research or management expertise
pertaining to green sturgeon from California and the Pacific Northwest.
The BRT considered the best available scientific and commercial
information, including information presented in the petition and in
response to our request for information concerning the status of and
efforts being made to protect the species (66 FR 64793; December 14,
2001). After completion of the Status Review (Adams et al., 2002), we
determined on January 23, 2003 (68 FR 4433), that green sturgeon is
comprised of two DPSs that qualify as species under the ESA: (1) a
northern DPS consisting of populations in coastal watersheds northward
of and including the Eel River (``Northern DPS''); and (2) a southern
DPS consisting of coastal and Central Valley populations south of the
Eel River, with the only known spawning population in the Sacramento
River (``Southern DPS''). After consideration of a variety of
information to assess risk factors, including abundance, fishing
impacts, and habitat modification, destruction, and loss, we determined
that neither DPS warranted listing as threatened or endangered (68 FR
4433). Uncertainties in the structure and status of both DPSs led us to
add them to the Species of Concern List (formerly the candidate species
list; 69 FR 19975; April 15, 2004).
On April 7, 2003, EPIC (and others) challenged our ``not
warranted'' finding for green sturgeon. The U.S. District Court for the
Northern District of California issued an order on March 2, 2004, which
set aside our ``not warranted'' finding and remanded the matter to us
for redetermination of whether green sturgeon is in danger of
extinction throughout all or a significant portion of its range, or is
likely to become so within the foreseeable future, because the Court
was not satisfied with our examination of whether purported lost
spawning habitat constituted a significant portion of either DPS'
range. We reestablished the BRT and asked the BRT to consider recent
scientific and commercial information available regarding the
biological status of green sturgeon and to assist us in assessing the
viability of the species throughout all or a significant portion of its
range. We published a notice on June 18, 2004, soliciting new
information beyond that considered in the previous Status Review and
listing determination (69 FR 34135). Following the close of this public
comment period on August 17, 2004, we convened the BRT to draft an
updated Status Review and distribute the updated Status Review to co-
managers (i.e., States of Washington, Oregon and California, Yurok and
Hoopa Tribes, U.S. Fish and Wildlife Service (FWS), and the California
Bay-Delta Program) for their review and comment. This updated Status
Review was finalized on February 22, 2005.
In a Federal Register notice published on April 6, 2005 (70 FR
17386), we reaffirmed our earlier determination that the northern green
sturgeon DPS does not warrant an ESA listing, but that this

[[Page 17758]]

DPS should remain on the Species of Concern List due to remaining
uncertainty in the status of, and threats faced by, the Northern DPS.
We, however, revised our previous ``not warranted'' finding for the
Southern DPS and proposed to list it as threatened under the ESA based
on: (1) New information showing that the majority of spawning adults
are concentrated into one spawning river (i.e., Sacramento River), thus
increasing the risk of extirpation due to catastrophic events; (2)
information that threats have remained severe since the first Status
Review and have not been adequately addressed by conservation measures
currently in place; (3) new information showing evidence of lost
spawning habitat in the upper Sacramento and Feather Rivers; and (4)
fishery-independent data exhibiting a negative trend in juvenile green
sturgeon abundance. We also solicited comments and new or additional
information regarding the status of, and critical habitat for, the
Southern DPS to help develop a final listing determination and possible
designation of critical habitat and ESA Section 4(d) regulations in
subsequent rule-making.

Biology and Life History of Green Sturgeon

A thorough account of green sturgeon biology and life history may
be found in the previous determination (68 FR 4433; January 23, 2003),
in the Status Review and Update (Adams et al., 2002, 2005), and in the
Proposed Rule to list the Southern DPS of green sturgeon as threatened
under the ESA (70 FR 17386; April 6, 2005).

Statutory Framework for ESA Listing Determinations

Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations
(50 CFR part 424) set forth the procedures for adding species to the
Federal list of threatened and endangered species. Section 4 requires
that listing determinations be based solely on the best scientific and
commercial data available, without consideration of possible economic
or other impacts of such determinations, after having conducted a
status review of the species and considering conservation efforts being
made to protect the species. After assessing a species's level of
extinction risk and identifying factors that have led to its decline,
we then assess existing efforts being made to protect the species to
determine if those measures ameliorate the risks faced by the species.
In judging the efficacy of existing protective efforts, we rely on the
joint NMFS-FWS ``Policy for Evaluation of Conservation Efforts When
Making Listing Decisions'' (``PECE;'' 68 FR 15100; March 28, 2003).

Summary of Comments Received

A public hearing was held on July 6, 2005, and the public comment
period closed on July 27, 2005. We received 32 comments by fax,
standard mail and e-mail. Thirteen of the commenters urged us to
withdraw its proposal to list the Southern DPS as threatened. Ten of
the commenters urged us to list the Southern DPS as endangered, not
threatened, under the ESA, to revise our previous ``not warranted''
finding for the Northern DPS, and to invoke ESA Section 9 take
prohibitions and designate critical habitat for listed entities
immediately. One commenter expressed mixed views of our proposal to
list the Southern DPS as threatened. Eight commenters provided no
opinion on our listing determinations, but requested that we exempt
certain captive populations of green sturgeon from threatened status
and forthcoming ESA protections.
Comment 1: Several commenters felt that we did not have enough
information to proceed with a listing and thus our proposal was
arbitrary and capricious.
Response: The ESA requires that listing decisions be based solely
on the best scientific and commercial data available and, therefore,
does not specify a minimum level of proof required to proceed. The
question as to whether there is sufficient information is an issue
addressed as part of the listing decision, and the BRT makes scientific
recommendations to NMFS through its Status Review and Updates that
inform the listing decision. In our December 14, 2001, 90-day finding
(66 FR 64793), we solicited information from the state and tribal co-
managers, as well as from scientists and individuals with research or
management expertise pertaining to green sturgeon from California and
the Pacific Northwest, to assist with the green sturgeon Status Review.
We also solicited any new information from the public since the 2001
solicitation (69 FR 34135; June 18, 2004) to assist us in updating our
Status Review. On January 27, 2005, we distributed the Status Review
Update to our co-managers for review. All of the information obtained
during these solicitations was considered and used in developing our
proposed and final listing determinations.
The BRT reiterated its recommendation that the Southern green
sturgeon DPS is likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range. This recommendation was made after considering the best
available information on the loss of historical habitat, the
concentration of the spawning population into a single location, the
trend in the salvage data, and the cumulative risk from a number of
different threats in the Sacramento River and Delta system.
We concluded that the blockage of green sturgeon by dams from their
original spawning grounds substantially increased extinction risk.
Green sturgeon historically spawned in higher-elevation, diverse
habitats in multiple rivers within the range of the Southern DPS.
Construction of dams and associated impoundments, which have altered
temperature and hydrologic regimes and simplified instream habitats
compared to their natural spawning grounds, are believed to have
substantially decreased spawning success.
The concentration of spawning into a single remaining habitat
greatly increases the potential for catastrophic extinction of green
sturgeon within the Southern DPS, even if green sturgeon populations
were sustainable in this habitat in the long-term. The possibility of
extirpation due to a catastrophic event was dramatically demonstrated
by the 1991 Cantara herbicide spill. Nineteen thousand gallons of the
herbicide metam sodium were released from a derailed train compartment
into the Sacramento River killing nearly all aquatic life within a 45-
mile segment of the river (http://www.cantaratrustees.org/spill.htm) .
The green sturgeon salvage data imply a substantial decline in
population numbers (see response to Comment 3 below). We remain
concerned about the cumulative amount of risk to green sturgeon from a
number of threats in the Sacramento River and Delta system. These
threats were reviewed in the green sturgeon Status Review and Update.
We are also concerned about how these different threats interact in
their influence on green sturgeon. A number of ecological indicators,
such as the recent collapse of the pelagic food web in the Delta,
suggest that there are serious problems within the ecosystem upon which
green sturgeon depend for an important portion of their life cycle.
Recent unpublished reports, public presentations, and press releases by
the California Department of Fish and Game (CDFG) indicate that many of
the Delta's fish species have declined to the lowest levels ever recorded
(http://science.calwater.ca.gov/pdf/workshops/
IEP_POD_2005WorkSynthesis-draft_111405.pdf)

[[Page 17759]]

Toxins, invasive species, and water project operations, all
identified as threats to the Southern DPS of green sturgeon, may be
acting in concert or individually to lower pelagic productivity in the
Delta. In addition, CDFG estimates that the population of legal-sized
(117 to 183cm total length (TL)) white sturgeon has experienced a six-
fold decline since 1998 (M. Gingras, CDFG, pers. comm.).
We considered both the BRT's conclusions, information received via
the review process and solicitations for information, and conservation
efforts currently being made to protect the Southern DPS (see Response
to Comment 8 below) in reaching our listing decision. The best
available scientific and commercial information was sufficient to
conclude that the Southern DPS is likely to become endangered within
the foreseeable future.
Comment 2: Several commenters felt that the rationale we used for
determining whether Southern DPS spawning habitat has been lost over
time was flawed because a surrogate species was used to determine
habitat suitability and because lost habitat was not quantified.
Response: Chinook habitat modeling, the only such habitat
assessment currently available to describe loss of riverine habitat in
the Central Valley, is appropriate for use in determining habitat
availability trends for green sturgeon for several reasons. Both green
sturgeon and spring-run Chinook are anadromous species that evolved in
the pre-dam Central Valley environment where they had access to higher
elevation, cooler water habitats. Both species are affected by the
limited amount of cool water spawning and rearing habitat. Cool water
habitat can best be approximated by mean annual discharge or the amount
of high elevation habitat (Lindley et al., 2004). It is generally
accepted that green sturgeon (FWS, 1994) and spring-run Chinook (Moyle,
2002) historically used spawning grounds in the area above Shasta Dam.
White sturgeon were observed in the Pitt River to the vicinity of Lake
Britton (FWS, 2005) above Shasta Dam, and presumably green sturgeon
occurred at these elevations as well. Green sturgeon and Chinook
spawning temperature tolerances are similar. Green sturgeon spawn in
water temperatures ranging from 8[deg] to 14[deg] C (FERC, 2004a),
although eggs have been artificially incubated at temperatures as high
as 15.8[deg] C (Deng, 2000). Chinook temperature spawning tolerances
are in the range of 5.6[deg] to 12.8[deg] C (FERC, 2004b). The
similarities in spawning temperature ranges suggest that spawning in
the pre-dam period may have occurred at similar water temperatures and,
therefore, at similar discharges and elevations. The similarity of
spawning requirements for these two species allows for the use of a
surrogate species for habitat analysis. In summary, Chinook habitat
modeling has shown that pre-dam, diverse, natural, higher-elevation
spawning and rearing habitats were replaced with a smaller,
concentrated, simpler spawning habitat. The BRT concluded that a
similar replacement has occurred for green sturgeon as well and
considered this habitat replacement to greatly increase extinction risk
for green sturgeon. A direct green sturgeon habitat analysis is
preferable to using a surrogate, and that analysis is currently
underway at the Southwest Fisheries Science Center, but results are
currently not available.
The BRT discussed the possibility of quantifying lost spawning
habitat in terms of the number of linear miles of river habitat lost
due to dam construction in the Sacramento and Feather Rivers. It was
decided that this type of quantification should wait until the green
sturgeon habitat analysis is complete so that this information can be
used to inform decisions made in subsequent rule-making.
Comment 3: Several commenters stated that habitat availability
should not be compared before and after construction of dams in the
Central Valley because their construction occurred too long ago.
Instead, it was suggested that the evaluation of habitat loss be based
on more recent times.
Response: We disagree with the commenters' views that we have
inappropriately evaluated habitat loss over time for the Southern DPS.
ESA section 7(a)(2) implementing regulations define environmental
baseline as including the effects of past and present Federal, state,
or private actions and other human activities which have led to the
current status of the species and its habitat (50 CFR 402.02). We have
adopted this definition here to examine changes in freshwater habitat
availability for green sturgeon from a time when very few Federal,
state, or private activities curtailed habitat within the boundaries of
the Southern DPS to a time when many actions have irreparably altered
habitat. This definition includes no temporal limit when considering
changes in habitat availability to inform ESA decisions. In addition,
in previous listing decisions for salmon and steelhead, we have used
pre- and post-dam construction information in considering habitat loss
and declines in abundance.
Comment 4: Several commenters questioned whether we used new data
to inform the revision of our previous ``not warranted'' finding to a
threatened listing for the Southern DPS.
Response: We did use new information, collected since the
publication of the first Status Review in 2002, to revise the previous
``not warranted'' finding for the Southern DPS. Several recent sources
of data (Hancock, 2002; CDFG, 2003) have suggested that riparian
habitat in the Central Valley continues to decline in quantity and
quality and that the threats causing these declines are steadily
getting worse over time rather than better. The Chinook Habitat
Assessment (Lindley et al., 2004) used as a surrogate to infer loss of
green sturgeon habitat was not available at the time of the 2002 Status
Review. Tagging studies conducted throughout the range of green
sturgeon have provided new information on movement patterns and use of
freshwater, estuarine, and marine habitats by juveniles and adults (S.
Lindley, SWFSC and M. Moser, NWFSC, pers. comm.). These studies suggest
that green sturgeon return to spawning rivers on a more frequent basis
(2-3 years) than previously thought (S. Lindley, SWFSC, pers. comm.).
Thus, the proportion of a given individual's time spent in freshwater
spawning habitat may be larger than previously thought, highlighting
the importance of freshwater habitat quality and quantity to overall
population viability.
Additional sightings and observation of behaviors of green and
white sturgeon have been reported in the Sacramento, Feather, and San
Joaquin rivers, including sturgeon remains being identified in middens
in the San Joaquin River (southernmost documented location to date;
Gobalet et al., 2004). Much of these data are from personal
communications (Beamesderfer et al., 2004) and as such are not
comprehensive, but they are useful for establishing presence and for
informing our conclusions regarding habitat use. This new information
has led us to conclude that: (1) the Sacramento River is the only
spawning population remaining in the Southern DPS; (2) the Feather
River likely supported a spawning population in the past, but does not
currently; and (3) the San Joaquin River may have supported a spawning
population in the past based on recent (2003) white sturgeon spawning
and past presence in the system.

[[Page 17760]]

Comment 5: A few commenters felt that the importance of the Feather
River as historical green sturgeon habitat was overstated, as was the
possibility that the Thermalito Afterbay has caused a thermal barrier
to fish passage and successful spawning and subsequent recruitments.
Response: We reiterate our conclusion that the Feather River once
supported a green sturgeon spawning population, and the loss of this
population resulted in a substantial increase in extinction risk for
the Southern DPS, regardless of the size of the population. The
conclusion that there had been a Feather River population was based on
sightings of individual green sturgeon, statements by experts, and use
of the habitat by surrogate species. A number of experts have expressed
the opinion that the Feather River once supported a viable green
sturgeon population. CDFG (2002) stated ``the most likely loss of
spawning habitat is in the Feather River, as Oroville Dam blocks access
to potential spawning habitat'', and CDFG shows the Feather River as
green sturgeon habitat on its online distribution map (http://www.calfish.org)
. Moyle (2002) stated, ``In the Sacramento drainage
capture of larval green sturgeon in salmon outmigrant traps indicates
that the lower Feather River may be a principal spawning area.''
Finally, the conclusion that the Feather River contained a green
sturgeon population is also supported by habitat use patterns of
surrogate species: (1) the historic presence of white sturgeon in the
Feather River (Painter, 1977); and (2) the Chinook habitat analysis,
which suggests that Chinook used the North, Middle, and South forks of
the Feather River as well as the Yuba River (Lindley et al., 2004) as
spawning habitat.
Although adult green sturgeon occurrence in the Feather River and
its tributary, Bear River, has been documented from the past (USFWS,
1995; Moyle, 2002) to the present (Beamesderfer et al., 2004; CDWR,
2005), larval and juvenile green sturgeon have not been collected
during recent efforts (2000-2001 and 2003). These efforts included
attempts to collect larval and juvenile sturgeon during early spring
through summer using rotary screw traps, artificial substrates, and
larval nets deployed at multiple locations (Schaffter and Kohlhorst,
2001; A. Seesholtz, 2003, 2005). These results support our conclusion
that an effective population of spawning green sturgeon does not exist
in the Feather River at the present time.
The BRT's concern about the Thermalito Afterbay creating a thermal
barrier was based on a comment that warm water releases from the
Afterbay may increase temperatures to levels that are undesirable for
green sturgeon spawning and incubation especially during low flow years
(CDFG, 2002). Given that other data suggest that high water
temperatures have posed a threat to successful green sturgeon spawning
and recruitment in the Feather River (FWS, 1995) and historically in
the Sacramento River (prior to installation of the Shasta Dam
temperature control device in 1997), we do not believe we have
overstated its importance.
Comment 6: One commenter stated that a large portion of the green
sturgeon population is at sea at any given time and that the marine-
inhabiting portion of the green sturgeon population would serve as a
buffer against extinction.
Response: We do not believe that green sturgeon are significantly
buffered against extinction by the marine portion of their populations.
Green sturgeon have the most extensive marine distribution of all
sturgeon. The buffering argument is that only a small fraction of the
total population is in freshwater at any given time, and the marine
portion provides a sanctuary against extinction risk. While this is
true of a one-time catastrophic event, other persistent risk factors
will continue to have impacts on green sturgeon spawning and
recruitment success, the most important factors for determining
population viability. While there may be a relatively large number of
green sturgeon in the ocean compared to freshwater at any given point
in time, it is the freshwater component of an individual's life history
that determines whether that individual will spawn successfully and
produce offspring that survive to maturity. In addition, green
sturgeon, as with most other fish species, are most vulnerable and
likely experience their highest natural mortality rates during the
portion of their lives spent in freshwater as larvae and juveniles
(Houde, 1987). Thus, additional risks faced during the freshwater
portion of green sturgeon's life history are likely most critical in
determining long-term viability of the Southern DPS. In addition, it
appears that green sturgeon may return to spawn on a shorter cycle than
previously thought. Green sturgeon have been found to return to spawn
on a 2- or 3-year cycle (S. Lindley, NMFS, per. comm.). Also, subadult
green sturgeon have been observed in spawning areas (S. Lindley, NMFS,
per. comm.). The cumulative risk experienced by the Southern DPS while
in freshwater habitat is likely higher than previously thought because
the proportion of time that any individuals spends in the marine
environment may be much smaller than previously thought.
Comment 7: Many commenters believed that we overstated the
importance and utility of salvage data to ascertain trends in green
sturgeon numbers.
Response: Our proposed determination that the Southern DPS of green
sturgeon face extinction in the foreseeable future was based on
multiple lines of data and was not solely dependent on the salvage
data. The BRT reconsidered the salvage data in greater depth and
concluded that the numbers of green sturgeon were higher in the salvage
facilities data prior to 1986 compared to after. However, it appears
that expansions were larger in this period as many commentators
suggested. The State facility numbers provided the longest time series,
thus the BRT focused on these data for the analysis. The BRT concluded
that not only were the estimated numbers of green sturgeon 14 times
higher in the pre-1986 period than after, but the number of actual
green sturgeon observed was 3 1/2 times higher in the pre-1986 period.
There is further support for high juvenile sturgeon abundance during
the 1974-75 period from the white sturgeon trammel net sampling. The
green sturgeon to white sturgeon ratio of fish less than 102 cm was
1.661 in 1974. This is more than twice the next highest year and six
times higher than the average. Independent evidence from two different
sampling sources is strong justification for assuming that the 1974-75
period was one of high juvenile green sturgeon abundance, and this type
of recruitment success has not been observed since.
The BRT also found support for the many comments suggesting that
salvage estimate expansions were higher in the pre-1986 period. A
General Linear Model analysis of the green sturgeon estimates compared
to observed fish in the pre-1986 period showed that one observed fish
was converted to 48 estimated fish (coefficient = 47.9, F = 303 with 16
df, p=0.001). The same analysis for the period from 1986 to 2001 showed
that one observed fish was converted into 9.7 estimated fish
(coefficient = 9.7, F = 12.4 with df =14, p =0.003). Therefore, we
acknowledge that expansion rates were higher prior to 1986. However,
even after accounting for the higher expansion rates, there were more
green sturgeon present in salvage operations prior to 1986. Other
caveats about the use of the salvage data are reviewed in the Status
Review and Update.

[[Page 17761]]

Comment 8: Several commenters stated that we did not consider or
that we inappropriately discounted other data sources that would have
been valuable for determining trends in abundance.
Response: The BRT reviewed other data sources suggested by the
commenters and determined that they had been considered previously and
in some cases were deemed not useful, usually due to the lack of green
sturgeon occurring in the data series. The CDFG San Pablo Bay sturgeon
trammel net sampling, the Klamath Tribal Catch time series, and the
Glenn-Colusa Irrigation District (GCID) screw trap data were all
analyzed in the original Status Review, and detailed discussions of
these data sets may be found there (Adams et al., 2002). Briefly, the
CDFG San Pablo Bay trammel net sampling provided the only non-harvest
based population estimates of abundance over time from 1954-2001. The
data exhibited no significant trend over time, and it suffers from a
number of biases: (1) The data depend on tag recoveries from the sport
fishery and, therefore, reflect varying levels of effort; (2) sampling
prior to 1990 was irregular; and (3) the estimates for green sturgeon
are calculated incidentally based on tag returns from white sturgeon
and assume that the temporal, spatial and gear vulnerabilities of both
species are equal. The GCID sampling began in 1987, underwent a gear
change in 1991, and has occurred each year since that time except for
1998. The total number of juvenile green sturgeon has fluctuated by
over an order of magnitude between some years, but no clear temporal
trends could be discerned despite a steady decline in numbers since
1997. We hope these data will be a useful indicator of green sturgeon
juvenile abundance trends in the future as the temporal coverage of the
sampling increases. The Klamath Tribal Catch time series refers to the
Northern DPS and therefore will not be addressed here.
Examination of other data sets was conducted in preparation for the
original Status Review, but the BRT concluded that: (1) the spatial/
temporal scale of sampling or the gear type was not appropriate for
ascertaining trends in the Southern DPS abundance; and/or (2) too few
green sturgeon were captured during the time series to make conclusions
about trends over time. For example, after 21 years (1980-2001) of
conducting the San Francisco Bay otter trawl survey (CDFG, 2002), only
61 green sturgeon were collected from four locations between 1980 and
2001. However, in earlier sampling during an 11-month period between
September 1963 and August 1964, 28 green sturgeon were captured with
similar gear while 138 were captured with gill nets (CDFG, 2002), again
indicating higher previous abundances. The UC Davis Suisun Marsh otter
trawl sampling data set was also considered in preparation for the
original Status Review, but was not found useful since fewer than 12
individuals were taken in 25 years of sampling (P. Moyle, UC Davis,
per. comm.). The gear is suitable for taking small sturgeon, but few
were found in the sampling area during the entire course of the
sampling, and, thus, an analysis of trends could not be conducted.
Indian midden data were not found useful for establishing historical
range during preparation of the original Status Review (Gobalet et al.,
2004) since midden data did not record sturgeon presence throughout the
area of known historical occurrence. Further investigation (K. Gobalet,
CSU Bakersfield, per. comm.) reveals that sturgeon bones were found at
Lake Tulare, in the San Joaquin Valley system, the southernmost
location recorded for sturgeon presence. Unfortunately, investigators
are not able to distinguish between green and white sturgeon bones.
Two data sets had not been considered previously. The Chipps Island
midwater trawl program only captured 15 green sturgeon in over 33,000
trawls conducted from 1976 to 2004 (P. Cadrett, USFWS, per. comm.). The
BRT's conclusion was that this information was not useful in
determining green sturgeon status or trends. The striped bass summer
townet survey, designed to collect 38 mm larvae, only collected a
``handful of sturgeon'' during the time series beginning in 1959 (P.
Coulston, CDFG, per. comm.). The BRT did not find this ancillary catch
information to be reliable for determining green sturgeon status or trends.
Comment 9: Several commenters felt that recent state, local and
Federal conservation efforts will help ensure the long-term viability
of the Southern DPS to the point that a listing is not necessary.
Response: To consider that a formalized conservation effort
contributes to forming a basis for not listing a species, we must find
that the conservation effort is sufficiently certain to be implemented
and effective so as to have contributed to the elimination or adequate
reduction of one or more threats to the species identified through the
ESA section 4(a)(1) analysis (pursuant to PECE, 68 FR 15100). In the
proposed listing determination, we noted promising efforts to improve
the quality of habitat and reduce threats to species that exhibit some
degree of spatial and/or temporal overlap in spawning requirements with
the Southern DPS in the Central Valley. However, NMFS does not believe
that these efforts will reduce the risks to the Southern DPS enough to
negate a threatened listing for the Southern DPS. When considering
protective efforts, we need to weigh the certainty of their
implementation and effectiveness against the threats causing risk to
the Southern DPS. The actions proposed or being carried out by the
California Bay-Delta Program (CALFED), the Central Valley Project
Improvement Act (CVPIA), and CDFG include: (1) improving flow
conditions in the Central Valley; (2) installing additional fish
screens and improving fish passage; and (3) implementing stricter
fishing regulations. These actions represent important contributions to
addressing limiting factors for the Southern DPS; however, at this time
these efforts alone do not substantially ameliorate risks to the
Southern DPS such that protections afforded under the ESA are no longer
necessary. As noted in the proposed listing determination (70 FR 17386;
April 6, 2005) and summarized above, we feel that continued and
additional conservation efforts are necessary beyond those addressed by
commenters.
Comment 10: Several commenters opposed our proposal to list the
Southern DPS as threatened and believed that an endangered listing was
warranted. They disagreed that the habitat restoration efforts
associated with CALFED, the CVPIA, and newly proposed CDFG fishing
regulations provide sufficient certainty of implementation and
effectiveness (pursuant to PECE) to conclude that the Southern DPS
should be listed as threatened rather than endangered.
Response: We believe that the Southern DPS is likely to become
endangered in the foreseeable future throughout all or a significant
portion of its range, but is not currently in danger of extinction for
the following reasons. There is evidence that the Southern DPS
continues to spawn in the Sacramento River and that spawning habitat of
suitable quality still exists there. The best available data suggest
that Southern DPS adults and juveniles have been present consistently
within the Sacramento River system over a relatively long time period,
despite the suggestion of decreasing abundance over the last decade.
Thus, the continued presence of a viable green sturgeon population in
the Sacramento River supports our conclusion that the Southern DPS is
not at imminent risk of

[[Page 17762]]

extinction, but that risk of extinction in the foreseeable future is
possible over the longer-term if the threats to the species are not
ameliorated.
While we are encouraged by the recent proposals by: (1) CALFED and
the CVPIA to specifically include green sturgeon monitoring and
research activities in their habitat improvement and planning efforts
in the Central Valley; and by (2) CDFG's proposal to implement more
protective sturgeon fishing regulations and a directed monitoring
program for green sturgeon, we agree that these measures do not provide
sufficient certainty of implementation and effectiveness to negate a
threatened listing (pursuant to the PECE Policy), as explained above .
We do believe, however, that the proposals toimplement additional
conservation measures over the short- and long-term offer additional
assurance that extinction of the Southern DPS is unlikely to occur
imminently.
Comment 11: Several commenters supported the exclusion of captive-
bred green sturgeon from the Southern DPS and thought that take,
transport, delivery, shipment and sale of captive-bred green sturgeon
and the progeny thereof for domestic and international commerce should
be allowed. The commenters thought that maintenance of a non-listed,
captive-bred population of green sturgeon, originating from broodstock
taken from the Klamath and Sacramento Rivers would: (1) further
research goals and inform future management decisions; (2) take
pressure off over-exploited wild stocks of beluga sturgeon through
production of alternative sources of caviar; and (3) serve as a
safeguard population for the Sacramento River in the event that the
wild population experiences additional declines and requires
supplementation through enhancement.
Response: While the ESA authorizes the listing, delisting, or
reclassification of a species, subspecies, or DPS of a vertebrate
species, it does not authorize the exclusion of a subset or portion of
a listed species, subspecies, or DPS from a listing decision. In 2001,
the U.S. District Court in Eugene, Oregon (Alsea Valley Alliance v.
Evans, 161 F. Supp. 2d 1154 (D. Or. 2001)) (Alsea), ruled that once we
had delineated a DPS (for Oregon Coast coho), the ESA did not allow
listing only a subset (that which excluded 10 hatchery stocks) of that
DPS. We have reviewed no data to suggest that captive-bred green
sturgeon are more than moderately diverged from local, native
populations in the Klamath and Sacramento River.
We believe that many of the benefits derived from captive-bred
populations of green sturgeon, outlined by the commenters above, are
valid and important to the overall conservation and recovery of the
Southern DPS. In an effort to ensure that the native populations are
not adversely affected, we will consider carefully the exemptions
requested as we develop an ESA section 4(d) Rule in subsequent rule-making.

Status of the Southern DPS of Green Sturgeon

We have reviewed the petition, the reports of the BRT (NMFS, 2002,
2004), co-manager comments, public comments, and other available
published and unpublished information, and we have consulted with
species experts and other individuals familiar with green sturgeon. We
conclude that the Southern DPS is likely to become endangered in the
foreseeable future throughout all of its range because: (1) the
Sacramento River contains the only known green sturgeon spawning
population in this DPS, and the concentration of spawning adults in one
river places this DPS at risk; (2) there was a substantial loss of
spawning habitat in the upper Sacramento and Feather Rivers (FWS,
1995b, historical habitat data summarized in Lindley et al., 2004 for
salmonids) for reasons cited in the first Status Review, Update, and
the Proposed Rule (see those documents for a full discussion) and the
loss of this spawning habitat contributed to the overall decline of the
Southern DPS; (3) recent studies (since 2002) have indicated that the
Sacramento River and Delta System face mounting threats with regard to
maintenance of habitat quality and quantity and the Southern DPS is
directly dependent upon this ecosystem for its long-term viability; and
(4) fishery-independent data collected at the State and Federal salvage
facilities indicate a decrease in observed numbers of juvenile green
sturgeon collected from 1968 to 2001.
We conclude that the Southern DPS of green sturgeon is not
presently in danger of extinction throughout all or a significant
portion of its range. The continued persistence of green sturgeon
adults and juveniles in the Sacramento River indicates that this
population is viable and is not at imminent risk of extinction. We
believe that spawning habitat has been lost in the Sacramento and
Feather Rivers, and possibly in the San Joaquin River, but due to a
paucity of data, we are unable to determine the geographic extent and
demographic consequences of this loss.

Summary of Factors Affecting the Southern DPS of Green Sturgeon

Section 4(a)(1) of the ESA and NMFS's implementing regulations (50
CFR part 424) state that we must determine whether a species is
endangered or threatened because of any one or a combination of the
following factors: (1) the present or threatened destruction,
modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; or (5) other natural or man-made
factors affecting its continued existence. We have previously detailed
the impacts of various factors contributing to the decline of the
Southern DPS in our Proposed Rule (70 FR 17386, April 6, 2005), as well
as in the Status Review and Update (e.g., Adams et al., 2002, 2005).
The primary factors responsible for the decline of the Southern DPS are
the destruction, modification or curtailment of habitat and inadequacy
of existing regulatory mechanisms. The following discussion briefly
summarizes findings regarding threats to the Southern DPS.

The Present or Threatened Destruction, Modification, or Curtailment of
its Habitat or Range

The principal factor for decline of the Southern DPS is the
reduction of the spawning area to a limited area of the Sacramento
River. Keswick Dam provides an impassible barrier blocking green
sturgeon access to what were likely historic spawning grounds upstream
(FWS, 1995). A substantial amount of habitat in the Feather River above
Oroville Dam also was lost, and threats to green sturgeon in the
Feather River are similar to those faced by green sturgeon in the
Sacramento River (NMFS, 2004). The BRT concluded that an effective
population of spawning green sturgeon (i.e., a population that is
contributing offspring to the next generation) no longer exists in the
Feather River and was likely lost due to habitat blockage caused by the
construction of Oroville Dam and from thermal barriers associated with
the Thermalito Afterbay Facility.
Potential adult migration barriers to green sturgeon include the
Red Bluff Diversion Dam (RBDD), Sacramento Deep Water Ship Channel
locks, Fremont Weir, Sutter Bypass, and the Delta Cross Channel Gates
on the Sacramento River, and Shanghai Bench and Sunset Pumps on the
Feather River. The threat of screened and unscreened

[[Page 17763]]

agricultural, municipal, and industrial water diversions in the
Sacramento River and Delta to green sturgeon is largely unknown as
juvenile sturgeon are often not identified and current CDFG and NMFS
screen criteria do not address sturgeon. Based on the temporal
occurrence of juvenile green sturgeon and the high density of water
diversion structures along rearing and migration routes, we find the
potential threat of these diversions to be serious and in need of study
(NMFS, 2005).
CDFG (1992) and FWS (1995) found a strong correlation between mean
daily freshwater outflow (April to July) and white sturgeon year class
strength in the Sacramento-San Joaquin Estuary (these studies primarily
involve the more abundant white sturgeon; however, the threats to green
sturgeon are thought to be similar), indicating that insufficient flow
rates are likely to pose a significant threat to green sturgeon.
High water temperatures may pose a problem on the Feather River
downstream of the Thermalito Afterbay outlet (FWS, 1995), and it is not
expected that water temperatures in the system will become more
favorable in the near future (CDFG, 2002). Elevated water temperature
is likely no longer a problem in the Sacramento River with the
installation of the Shasta Dam temperature control device in 1997.
However, the possible long-term adverse affects on the overall
population size and age-structure from elevated water temperature and
the limited storage capacity and cold water reserves of the Shasta Dam
in the past are still cause for concern.
Contamination of the Sacramento River increased substantially in
the mid-1970s when application of rice pesticides increased (FWS,
1995). Estimated toxic concentrations for the Sacramento River during
1970-1988 may have deleteriously affected the larvae of another
anadromous species (e.g., striped bass) that occupies similar habitat
as green sturgeon larvae (Bailey, 1994), and a recent report indicates
that toxins may be at least partially responsible for the pelagic organism
decline in the Delta. (http://science.calwater.ca.gov/pdf/workshops/
IEP_POD_2005WorkSynthesis-draft_111405.pdf) White sturgeon
may also accumulate PCBs and selenium (White et al., 1989). While green
sturgeon spend more time in the marine environment than white sturgeon
and, therefore, may have less exposure, we conclude that some degree of
risk from contaminants probably occurs for green sturgeon.

Overutilization for Commercial, Recreational, Scientific or Educational
Purposes

While this factor was not considered the primary factor causing the
decline of the Southern DPS, it is believed that past and present
commercial and recreational fishing is likely to pose a threat to the
Southern DPS. Ocean and estuarine bycatch of green sturgeon in the
Oregon and Washington white sturgeon and salmonid fisheries (which may
take some Southern DPS fish) has been reduced to 6 percent of its 1986
high value of 9,065 fish. The recent reduction is due to newly imposed
fishing regulations in Oregon and Washington. Commercial fisheries
targeting sturgeon have not been allowed in the Columbia River or
Willapa Bay since 2001, and recreational fishing remains negligible
(WDFW, 2004). CDFG (2002) estimated an average fishing mortality of 2.2
percent for green sturgeon based on tag return data in the Sacramento-
San Joaquin Estuary. The impact of this fishing mortality rate is
unknown. Potential new regulatory measures being considered by the
State of California (M. Gingras, CDFG, pers. comm.) may confer reduced
risk to the Southern green sturgeon DPS because regulatory measures
recently implemented within the Northern DPS (see Proposed Rule, 70 FR
17386, April 6, 2005) seem to have had a positive effect on that DPS.
However, we remain concerned about the risks associated with fishing
pressure and poaching within the Southern DPS.
CDFG has stated that sturgeon are highly vulnerable to fisheries,
and the trophy status of large white sturgeon makes sturgeon a high
priority for enforcement to protect against poaching (CDFG, 2002). In
fact, a number of sturgeon poaching operations have been discovered in
recent years (e.g., http://www.dfg.ca.gov/news/news04/04040.html) , and
we expect poaching pressure to remain high because of the increasing
demand for caviar, coupled with the decline of other sturgeon species
around the world, primarily the beluga sturgeon. So while we are
uncertain how poaching may affect the Southern DPS, we believe that it
does pose a real risk and that future efforts by the agencies should be
made to estimate annual mortality rates due to poaching.

Disease or Predation

Although a number of viral and bacterial infections have been
reported in hatcheries (http://aquanic.org/publicat/usda_rac/efs/srac/
7200fs.pdf) , and habitat conditions such as low water flows and
high temperatures can exacerbate susceptibility to infectious diseases, we
do not believe there is sufficient information to suggest that disease
has played an important role in the decline of the Southern DPS. Non-
native species are an ongoing problem in the Sacramento-San Joaquin
River and Delta systems through introductions and modification of
habitat (CDFG, 2002). However, at present we are not able to estimate
mortality rates imposed by non-native predators (i.e. striped bass) on
green sturgeon. We do know that striped bass may affect the population
viability of Chinook salmon (Lindley and Mohr, 2003) and may impose
significant predation rates on other anadromous species (Blackwell and
Juanes, 1998). Therefore, we maintain that, while predation risk
imposed by striped bass on the Southern DPS is uncertain, it likely
exists, and additional studies are needed to determine the importance
of this threat to the long-term survival of the Southern DPS.

The Inadequacy of Existing Regulatory Mechanisms

We reviewed existing regulatory mechanisms in the Proposed Rule as
part of our evaluation of efforts being made to protect green sturgeon
(70 FR 17386; April 6, 2005). We noted several Federal, State, and
local regulatory programs that have been implemented to help reduce
historical risks to green sturgeon. In particular, changes in
regulations governing fisheries in Washington and Oregon have
potentially reduced the risks for the Southern DPS, though regulations
in California have not changed since the previous Status Review and
Update. In addition, although there have been efforts to improve
habitat conditions across the range of the Southern DPS, less has been
accomplished through regulatory mechanisms to reduce threats posed by
blocked passage to spawning habitat and water diversions. Thus, we
conclude that inadequacy of existing regulatory mechanisms has
contributed significantly to the decline of the Southern DPS and to the
severity of threats that the Southern DPS currently faces.

Other Natural or Manmade Factors Affecting Its Continued Existence

This factor was not considered a primary factor in the decline of
the Southern DPS. Non-native species are an ongoing problem in the
Sacramento-San Joaquin River and Delta systems (CDFG, 2002). One risk
for green sturgeon associated with the introduction of non-native
species

[[Page 17764]]

involves the replacement of relatively uncontaminated food items with
those that may be contaminated (70 FR 17386; April 6, 2005).
The previous Status Review (Adams et al., 2002) summarized juvenile
entrainment data and change in annual mean number over time. Juvenile
entrainment is considered a type of threat imposed by water diversions,
but the degree to which it is affecting the continued existence of the
Southern DPS remains uncertain.

Efforts Being Made to Protect the Southern DPS of Green Sturgeon

The PECE policy (68 FR 15100; March 28, 2003) provides direction
for the consideration of protective efforts identified in conservation
agreements, conservation plans, management plans, or similar documents
(developed by Federal agencies, State and local governments, Tribal
governments, businesses, organizations, and individuals) that have not
yet been implemented, or have been implemented but have not yet
demonstrated effectiveness. The evaluation of the certainty of an
effort's effectiveness is made on the basis of whether the effort or
plan: establishes specific conservation objectives; identifies the
necessary steps to reduce threats or factors for decline; includes
quantifiable performance measures for the monitoring of compliance and
effectiveness; incorporates the principles of adaptive management; and
is likely to improve the species' viability at the time of the listing
determination.
Conservation measures that may apply to listed species include
those implemented by tribes, states, foreign nations, local
governments, and private organizations. Also, Federal, tribal, state,
and foreign nations' recovery actions (16 U.S.C. 1533(f)), Federal
consultation requirements (16 U.S.C. 1536), and prohibitions on taking
(16 U.S.C. 1538) constitute conservation measures. In addition,
recognition through Federal government or state listing promotes public
awareness and conservation actions by Federal, state, tribal
governments, foreign nations, private organizations, and individuals.

Fishing Regulations

Recent management strategies affecting the Northern and Southern
DPS are outlined in the Proposed Rule (70 FR 17386; April 6, 2005).
Here we summarize fishery management efforts that affect only the
Southern DPS. Recent implementation of sturgeon fishing restrictions in
Oregon and Washington and protective efforts put in place on the
Klamath, Trinity, and Eel Rivers in the 1970s, 1980s, and 1990s may
offer protection to the Southern DPS.
General CDFG angling regulations apply to sturgeon angling from
Mendocino County south (one fish per day between 117 and 183 cm TL).
Both white and green sturgeon are protected by the same fishing
regulations in the Sacramento-San Joaquin system and a closure in
central San Francisco Bay occurs between January 1 and March 15,
coinciding with the herring spawning season to protect sturgeon feeding
on herring eggs (CDFG, 2002). No commercial take is permitted. Active
sturgeon enforcement is often employed in areas where sturgeon are
concentrated and particularly vulnerable to the fishery.
Recently, CDFG recognized that ``extant California fishing
regulations permit a greater degree of risk to green sturgeon than is
necessary to allow the popular sturgeon fishery'' (CDFG, 2005). Through
outreach efforts, it has found strong support for more protective
sturgeon fishing regulations among the sturgeon fishing community. The
Fish and Game Commission (Commission) passed an Emergency Regulation
proposed by CDFG on March 3, 2006, that outlines the following new
regulations for the recreational sturgeon fishery in California: (1) a
zero bag limit for green sturgeon throughout California; and (2) a 117-
142 cm fork length (FL) slot limit for white sturgeon throughout
California. This Emergency Regulation was prompted by the most recent
(2005) abundance estimate for white sturgeon (117-183 cm FL) in San
Pablo Bay exhibiting approximately an order of magnitude decline from
the estimate made in 1998. In addition, the Commission was concerned
because: (1) other sources of data suggested a large decline in
abundance of white sturgeon (117-183 cm FL); (2) substantial gaps in
the existing data regarding abundance of white sturgeon outside the
117-183 cm FL range; (3) there is substantial and effective fishing
pressure; and (4) there is interest by the public to implement more
protective regulations for sturgeon in California. Currently, the CDFG
and the Commission are working together towards implementing a long-
term set of regulations for the recreational sturgeon fishery that
would be put in place by 2007.

Habitat Protection Efforts

A summary of protective habitat efforts is provided in our response
to Comment 10 above. For a more detailed description, see the Proposed
Rule (70 FR 17386; April 6, 2005). We review our consideration of how
these efforts will affect the Southern DPS in our response to Comment 9
above, and a more detailed examination is provided in the Proposed Rule
(70 FR 17386; April 6, 2005). Our main conclusions are that: (1) green
sturgeon focused research will be used to enhance our understanding of
the risk factors affecting recovery, thereby improving our ability to
develop effective management measures; however, at present they do not
directly help to alleviate threats that this species faces in the wild;
and (2) all ongoing fish screen and passage studies are designed
primarily to meet the minimum qualifications outlined by the NMFS and
CDFG fish screen criteria, and though these improvements will likely
benefit salmonids, there is no evidence showing that these measures
will decrease the likelihood of green sturgeon mortality.
As evaluated pursuant to PECE, the above described protective
efforts do not as yet, individually or collectively, provide sufficient
certainty of implementation and effectiveness to counter the conclusion
that the Southern DPS is likely to become an endangered species in the
foreseeable future throughout its range.

Final Listing Determination

Based on our evaluation of the best available scientific
information and the ongoing state and Federal conservation efforts, the
Southern DPS is likely to become endangered in the foreseeable future
throughout all of its range and should be listed as threatened. This
threatened determination is based on the reduction of potential
spawning habitat, the severe threats to the single remaining spawning
population, the inability to alleviate these threats with the
conservation measures currently in place, and the decrease in observed
numbers of juvenile green sturgeon collected in the past two decades
compared to those collected historically.

Take Prohibitions and Protective Regulations

Section 9 of the ESA prohibits the take of endangered species. The
term ``take'' means to harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such conduct
(16 U.S.C. 1532(19)). In the case of threatened species, ESA section
4(d) leaves it to the Secretary's discretion whether to, and to what
extent to, extend the section 9(a) ``take'' prohibitions to the
species, and authorizes the NMFS to issue regulations it considers
necessary and advisable for the conservation of the species. Thus, we
have flexibility under section 4(d) to tailor protective

[[Page 17765]]

regulations, taking into account the effectiveness of available
conservation measures. The 4(d) protective regulations may prohibit,
with respect to threatened species, some or all of the acts which
section 9(a) of the ESA prohibits with respect to endangered species.
These 9(a) prohibitions and 4(d) regulations apply to all individuals,
organizations, and agencies subject to U.S. jurisdiction. We will
evaluate protective regulations pursuant to section 4(d) for the
Southern green sturgeon DPS and issue proposed regulations in
forthcoming rules that will be published in the Federal Register.

Other Protective Measures

Section 7(a)(2) of the ESA requires Federal agencies to confer with
us on actions likely to jeopardize the continued existence of species
proposed for listing or result in the destruction or adverse
modification of proposed critical habitat. If a Federal action is
likely to adversely affect a listed species or destroy or adversely
modify its critical habitat, the responsible Federal agency must
initiate formal consultation. Examples of Federal actions that may
affect the Southern green sturgeon DPS include: water diversion for
human use; point and non-point source discharge of persistent
contaminants; contaminated waste disposal; water quality standards; and
fishery management practices.
Sections 10(a)(1)(A) and (B) of the ESA provide us with authority
to grant exceptions to the ESA's Section 9 ''take'' prohibitions.
Section 10(a)(1)(A) scientific research and enhancement permits may be
issued to entities (Federal and non-Federal) for scientific purposes or
to enhance the propagation or survival of a listed species. The type of
activities potentially requiring a section 10(a)(1)(A) research/
enhancement permit include scientific research that targets green
sturgeon.
Section 10(a)(1)(B) incidental take permits may be issued to non-
Federal entities performing activities that may incidentally take
listed species, as long as the taking is incidental to, and not the
purpose of, the carrying out of an otherwise lawful activity.

Service Policies on Endangered and Threatened Fish and Wildlife

In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review establishing
minimum peer review standards, a transparent process for public
disclosure of peer review planning, and opportunities for public
participation. The OMB Bulletin, implemented under the Information
Quality Act (Public Law 106-554), is intended to enhance the quality
and credibility of the Federal government's scientific information, and
applies to influential scientific information disseminated on or after
June 16, 2005.
Pursuant to our 1994 policy on peer review (59 FR 34270; July 1,
1994), we have solicited the expert opinions of at least three
appropriate and independent specialists regarding pertinent scientific
or commercial data and assumptions relating to the taxonomy, population
models, and supportive biological and ecological information for
species under consideration for listing. We conclude that these expert
reviews satisfy the requirements for ``adequate [prior]
peer review''
contained in the Bulletin (sec. II.2.).

Critical Habitat

Critical habitat is defined in section 3 of the ESA as: (i) the
specific areas within the geographical area occupied by the species, at
the time it is listed in accordance with the ESA, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) which may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed upon
a determination that such areas are essential for the conservation of
the species (16 U.S.C. 1532(5)(A). Section 4(b) of the ESA states that
designation of critical habitat should occur at the same time as the
final ruling, unless the Secretary deems that critical habitat is not
then determinable, in which case the time to critical habitat
designation may be extended by 1 year. In a previous Federal Register
notice (66 FR 64793; December 14, 2001) we requested specific
information on critical habitat; however, because no substantial
information was received, we are again seeking public input and
information to assist in gathering and analyzing the best available
scientific data to support a critical habitat designation.
The Secretary has determined that critical habitat designation for
the Southern DPS is not yet determinable. We will continue to meet with
co-managers and other stakeholders to review information that will be
used in the overall designation process. We will then initiate
rulemaking with the publication in the Federal Register of a proposed
designation of critical habitat, followed by a period for public
comment and the opportunity for public hearings. In the coming year we
will evaluate the physical and biological features of specific areas
(e.g., spawning or feeding site quality or quantity, water quality or
quantity, geological formation, vegetation type) that are essential to
the conservation of the Southern DPS. Features that may be considered
essential could include, but are not limited to: (1) space for
individual and population growth, and for normal behavior; (2) food,
water, air, light, minerals, or other nutritional or physiological
requirements; (3) cover or shelter; (4) sites for breeding,
reproduction, rearing of offspring, germination, or seed dispersal; and
generally; (5) habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.

Information Solicited

To ensure that subsequent rule-making resulting from this Final
Rule will be as accurate and effective as possible, we are soliciting
information from the public, other governmental agencies, the
Government of Canada, the scientific community, industry, and any other
interested parties. Specifically, we are interested in information that
will inform the ESA section 4(d) rule making and the designation of
critical habitat for the Southern DPS, including: (1) green sturgeon
spawning habitat within the range of the Southern DPS that was present
in the past, but may have been lost over time; (2) biological or other
relevant data concerning any threats to the Southern green sturgeon
DPS; (3) current or planned activities within the range of the Southern
DPS and their possible impact on the Southern DPS; (4) efforts being
made to protect the Southern DPS; (5) necessary prohibitions on take to
promote the conservation of the green sturgeon Southern DPS; (6)
quantitative evaluations describing the quality and extent of
freshwater and marine habitats (occupied currently or occupied in the
past, but no longer occupied) for juvenile and adult green sturgeon as
well as information on areas that may qualify as critical habitat in
California for the proposed Southern DPS; (7) activities that could be
affected by an ESA section 4(d) rule and/or critical habitat
designation; and (8) the economic costs and benefits of additional
requirements of management measures likely to result from protective
regulations and designation of critical habitat (see DATES and
ADDRESSES).

References

A complete list of all references cited herein is available upon
request (see ADDRESSES section).

[[Page 17766]]

Classification

National Environmental Policy Act (NEPA)

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 NEPA. (See NOAA
Administrative Order 216 6.)

Executive Order (E.O.) 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 rule is exempt from review under E.O. 12866. This
Final Rule does not contain a collection-of-information requirement for
the purposes of the Paperwork Reduction Act.

Federalism

E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). 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 given to the relevant state
agencies in each state in which the species is believed to occur. We
have conferred with the States of Washington, Oregon, and California in
the course of assessing the status of the Southern DPS, and considered,
among other things, Federal, state and local conservation measures. We
intend to continue engaging in informal and formal contacts with the
states and other affected local or regional entities, giving careful
consideration to any information received.

List of Subjects in 50 CFR Part 223

Enumeration of threatened marine and anadromous species.

Dated: April 3, 2004.
James W. Balsiger,
Acting Deputy Assistant Administrator for Regulatory Programs, National
Marine Fisheries Service.

? For the reasons set out in the preamble, 50 CFR part 223 is amended as
follows:

PART 223--THREATENED MARINE AND ANADROMOUS SPECIES

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

Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.12 also
issued under 16 U.S.C. 1361 et seq.

? 2. In Sec. 223.102, revise paragraph (a) by adding paragraph (23) to
the end of the List of Threatened Marine and Anadromous Species:

Sec. 223.102 Enumeration of threatened marine and anadromous species.

* * * * *
(a) Marine and anadromous fish.

----------------------------------------------------------------------------------------------------------------
Species\1\
-------------------------------------------------- Citation (s) Citations (s) for
Scientific Where Listed for Listing Critical Habitat
Common name name Determinations Designations
----------------------------------------------------------------------------------------------------------------
* * * * *
(23) North American Green Sturgeon- Acipenser USA, CA. The southern .............. N/A
Southern DPS medirostris DPS includes all
spawning populations
of green sturgeon
south of the Eel
River (exclusive),
principally including
the Sacramento River
green sturgeon
spawning population.
* * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 06-3326 Filed 4-6-06; 8:45 am]
BILLING CODE 3510-22-S

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Endangered and Threatened Wildlife and Plants: Threatened Status for Southern Distinct Population Segment of North American Green Sturgeon

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