Endangered and Threatened Wildlife and Plants; Final Rule To List the Alabama Sturgeon as Endangered

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

[Federal Register: May 5, 2000 (Volume 65, Number 88)]
[Rules and Regulations]
[Page 26437-26461]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my00-14]

[[Page 26437]]

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Part III

Department of the Interior

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Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Final Rule To List the
Alabama Sturgeon as Endangered; Final Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF56

Endangered and Threatened Wildlife and Plants; Final Rule To List
the Alabama Sturgeon as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine the
Alabama sturgeon (Scaphirhynchus suttkusi) to be endangered under the
authority of the Endangered Species Act of 1973, as amended (Act). The
Alabama sturgeon's historic range once included about 1,600 kilometers
(km) (1,000 miles (mi)) of the Mobile River system in Alabama (Black
Warrior, Tombigbee, Alabama, Coosa, Tallapoosa, Mobile, Tensaw, and
Cahaba Rivers) and Mississippi (Tombigbee River). Since 1985, all
confirmed captures have been from a short, free-flowing reach of the
Alabama River below Millers Ferry and Claiborne Locks and Dams in
Clarke, Monroe, and Wilcox Counties, Alabama. The decline of the
Alabama sturgeon is attributed to over-fishing, loss and fragmentation
of habitat as a result of historical navigation-related development,
and water quality degradation. Current threats primarily result from
its reduced range and its small population numbers. These threats are
compounded by a lack of information on Alabama sturgeon habitat and
life history requirements. This action extends the Act's protection to
the Alabama sturgeon.

EFFECTIVE DATE: June 5, 2000.

ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at the Mississippi Field
Office, U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway,
Jackson, Mississippi 39213.

FOR FURTHER INFORMATION CONTACT: Paul Hartfield at the above address
(telephone 601/321-1125; facsimile 601/965-4340).

SUPPLEMENTARY INFORMATION:

Background

The Alabama sturgeon (Scaphirhynchus suttkusi) is a small,
freshwater sturgeon that was historically found only in the Mobile
River Basin of Alabama and Mississippi. This sturgeon is an elongate,
slender fish growing to about 80 centimeters (cm) (31 inches (in)) in
length. A mature fish weighs 1 to 2 kilograms (kg) (2 to 4 pounds
(lb)). The head is broad and flattened shovel-like at the snout. The
mouth is tubular and protrusive. There are four barbels (whisker-like
appendages used to find prey) on the bottom of the snout, in front of
the mouth. Bony plates cover the head, back, and sides. The body
narrows abruptly to the rear, forming a narrow stalk between the body
and tail. The upper lobe of the tail fin is elongated and ends in a
long filament. Characters used to distinguish the Alabama sturgeon from
the closely related shovelnose sturgeon (Scaphirhynchus platorynchus)
include larger eyes, orange color, number of dorsal plates, dorsal fin
ray numbers, and the absence of spines on the tip of its snout and in
front of its eyes.
The earliest specimens of Alabama sturgeon in museum collections
date from about 1880. The first mention of the fish in the scientific
literature, however, was not until 1955, when a report of the
collection of a single specimen from the Tombigbee River was published
by Chermock. In 1976, Ramsey referred to the Alabama sturgeon as the
Alabama shovelnose sturgeon, noting that it probably was distinct from
the shovelnose sturgeon, which is found in the Mississippi River Basin
and was also historically known from the Rio Grande. In 1991, Williams
and Clemmer formally described the species based on a statistical
comparison of relative sizes and numbers of morphological structures of
Alabama and shovelnose sturgeons.
The methods used by Williams and Clemmer (1991) to justify species
designation for the Alabama sturgeon have been criticized in
unpublished manuscripts (e.g., Blanchard and Bartolucci 1994, Howell et
al. 1995) and in one published paper (Mayden and Kuhajda 1996). The
criticisms included identification of a variety of statistical and
methodological errors and limitations (e.g., small sample size, clinal
variation (characteristics of a species correlated with changing
ecological variables), allometric growth (growth of parts of an
organism at different rates and at different times), inappropriate
statistical tests, and others). Bartolucci et al. (1998), using
Bayesian Analysis statistical methodology, found no significant
differences in multivariate means of measurement data, taken from
Williams and Clemmer (1991).
Mayden and Kuhajda (1996) reevaluated the morphological
distinctiveness of the Alabama sturgeon using improved statistical
tests and new data derived from examination of additional shovelnose
sturgeon specimens from a larger geographic area. Mayden and Kuhajda
(1996) identified eight new diagnostic characters, found little
evidence of geographic clinal variation in these diagnostic features,
and concluded that the Alabama sturgeon was a distinct and valid
species.
Attempts to clarify taxonomic relationships of the Alabama sturgeon
to other species of Scaphirhynchus using DNA sequencing have met with
limited success. In an unpublished report, Schill and Walker (1994)
used tissue samples from an Alabama sturgeon collected in 1993 to
compare the three nominal Scaphirhynchus species. Based on estimates of
sequence divergence at the mitochondrial cytochrome b locus, Alabama,
shovelnose, and pallid sturgeons (S. albus) were indistinguishable.
However, other studies have also found that the cytochrome b locus was
not useful for discriminating among some congeneric fish species that
were otherwise distinguished by accepted morphological, behavioral, and
other characteristics (Campton et al. 1995).
In two unpublished reports for the U.S. Army Corps of Engineers
(Corps) and us by Genetic Analyses, Inc. (1994, 1995), nuclear DNA
fragments were compared among the three Scaphirhynchus species. The
three Alabama sturgeon specimens examined were genetically divergent
from pallid and shovelnose sturgeons, while there were no observed
differences of DNA fragments between the pallid and shovelnose
sturgeons. However, the 1995 study also found that two of the Alabama
sturgeon differed substantially from the third, noted the small number
of samples of Alabama sturgeon, and recommended additional studies to
examine genetic diversity within the Alabama sturgeon population.
A comparative study of the mitochondrial DNA (mtDNA) d-loop of
Scaphirhynchus species by Campton et al. (1995) provided genetic data
consistent with the taxonomic distinction of the Alabama sturgeon from
the shovelnose sturgeon. The d-loop is considered to be a rapidly
evolving part of the genome. Campton et al. (1995) found that haplotype
(genetic markers) frequencies of the d-loop from the three
Scaphirhynchus species were significantly different, with the Alabama
sturgeon having a unique haplotype. However, the relative genetic
differences among the three species were small, suggesting that the
rate of genetic change in the genus is relatively slow and/or they have
only recently diverged. The genetic similarity

[[Page 26439]]

between the pallid and shovelnose sturgeon has been suggested to be due
to interbreeding that has recently occurred as a result of niche
overlap resulting from widespread habitat losses (Carlson et al. 1985,
Keenlyne et al. 1994).
During open comment periods for the proposed rule, we received
several reports and letters containing new data from mtDNA analysis of
Scaphirhynchus. Both Campton et al. (1999) and Mayden et al. (1999)
identified a haplotype common to the three Alabama sturgeon sampled
that was not observed in a much larger sample (>70) of pallid and
shovelnose sturgeons. Wells (in litt. 1999) also conducted mtDNA
analysis on eight shovelnose sturgeon and identified several new
haplotypes not found in previous studies. He did not find the haplotype
unique to Alabama sturgeon in these shovelnose sturgeon. Fain et al.
(2000) found that the mitochondrial cytochrome b gene was not useful to
distinguish species within Scaphirhynchus or two other species groups
within the sturgeon genus Acipenser. Campton et al. (in press)
submitted a peer-reviewed report supporting species recognition of all
three species within Scaphirhynchus, based on current morphological,
biogeographic, and molecular genetic evidence.
We acknowledge that there is some disagreement concerning the
Alabama sturgeon's taxonomic status. However, the description of the
Alabama sturgeon (Scaphirhynchus suttkusi) complies with the rules of
the International Code of Zoological Nomenclature (Sec. 17.11(b)).
Recognition of Alabama sturgeon as a species (Williams and Clemmer
1991) is supported by Mayden and Kuhajda (1996), as well as by several
recent unpublished genetic studies (Campton et al. 1995, 1999, in
press; Genetic Analyses, Inc. 1994, 1995; Mayden et al. 1999).
Furthermore, the Alabama sturgeon is nationally and internationally
recognized as a valid species (see response to Issue 2''), and will
continue to be so recognized unless overturned at some future date by
the scientific community through the formal peer review and publication
process.
Very little is known of the life history, habitat, or other
ecological requirements of the Alabama sturgeon. Observations by Burke
and Ramsey (1985) indicate the species prefers relatively stable gravel
and sand substrates in flowing river channels. Verified captures of
Alabama sturgeon have primarily occurred in large channels of big
rivers; however, at least two historic records were from oxbow lakes
(Williams and Clemmer 1991). Examination of stomach contents of museum
and captured specimens show that these sturgeon are opportunistic
bottom feeders, preying primarily on aquatic insect larvae (Mayden and
Kuhajda 1996). Mayden and Kuhajda (1996) deduced other aspects of
Alabama sturgeon life history by a review of spawning habits of its
better known congener (a species that is a member of the same genus),
the shovelnose sturgeon. Life history of the shovelnose sturgeon has
also been recently summarized by Keenlyne (1997). These data indicate
that Alabama sturgeon are likely to migrate upstream during late winter
and spring to spawn. Downstream migrations may occur to search for
feeding areas and/or deeper, cooler waters during the summer. Eggs are
probably deposited on hard bottom substrates such as bedrock, armored
gravel, or channel training works in deep water habitats, and possibly
in tributaries to major rivers. The eggs are adhesive and require
current for proper development. Sturgeon larvae are planktonic,
drifting with river currents, with postlarval stages eventually
settling out to the river bottom. Sexual maturity is believed to occur
at 5 to 7 years of age. Spawning frequency of both sexes is influenced
by food supply and fish condition, and may occur every 1 to 3 years.
Alabama sturgeon may live up to 15 or more years of age.
The Alabama sturgeon's historic range consisted of about 1,600 km
(1,000 mi) of river habitat in the Mobile River Basin in Alabama and
Mississippi. There are records of sturgeon captures from the Black
Warrior, Tombigbee, Alabama, Coosa, Tallapoosa, Mobile, Tensaw, and
Cahaba Rivers (Burke and Ramsey 1985, 1995). The Alabama sturgeon was
once common in Alabama, and perhaps also in Mississippi. The total 1898
commercial catch of shovel-nose sturgeons (i.e., Alabama sturgeon) from
Alabama was reported as 19,000 kg (42,000 lb) in a statistical report
to Congress (U.S. Commission of Fish and Fisheries 1898). Of this
total, 18,000 kg (39,800 lb) came from the Alabama River and 1,000 kg
(2,200 lb) from the Black Warrior River. Given that an average Alabama
sturgeon weighs about 1 kg (2 lb), the 1898 commercial catch consisted
of approximately 20,000 fish. These records indicate a substantial
historic population of Alabama sturgeon.
Between the 1898 report and 1970, little information was published
regarding the Alabama sturgeon. An anonymous article published in the
Alabama Game and Fish News in 1930 stated that the sturgeon was not
uncommon; however, by the 1970s, it had become rare. In 1976, Ramsey
considered the sturgeon as endangered and documented only six specimens
from museums. Clemmer (1983) was able to locate 23 Alabama sturgeon
specimens in museum collections, with the most recent collection dated
1977. Clemmer also found that commercial fishermen in the Alabama and
Tombigbee Rivers were familiar with the sturgeon, calling it
hackleback, buglemouth trout, or devilfish.
During the mid-1980s, Burke and Ramsey (1985, 1995) conducted a
status survey to determine the distribution and abundance of the
Alabama sturgeon. Interviews were conducted with commercial fishermen
on the Alabama and Cahaba Rivers, some of whom reported catch of
Alabama sturgeon as an annual event. However, with the assistance of
commercial fishermen, Burke and Ramsey were able to collect only five
Alabama sturgeons, including two males, two gravid females, and one
juvenile about 2 years old. Burke and Ramsey (1985) concluded that the
Alabama sturgeon had been extirpated from 57 percent (950 km or 589 mi)
of its range and that only 15 percent (250 km or 155 mi) of its former
habitat had the potential to support a good population. An additional
sturgeon was taken in 1985 in the Tensaw River and photographed, but
the specimen was lost (Mettee, Geologic Survey of Alabama, pers. comm.
1997).
In 1990 and 1992, biologists from the Alabama Department of
Conservation and Natural Resources (ADCNR), with the assistance of the
Corps, conducted searches for Alabama sturgeon using a variety of
sampling techniques, without success (Tucker and Johnson 1991, 1992).
However, some commercial and sports fishermen continued to report
recent catches of small sturgeon in Millers Ferry and Claiborne
Reservoirs and in the lower Alabama River (Tucker and Johnson 1991,
1992).
In 1993, our biologists and the ADCNR conducted another extensive
survey for Alabama sturgeon in the lower Alabama River. On December 2,
1993, a mature male was captured alive in a gill net downstream of
Claiborne Lock and Dam, at river mile 58.8 in Monroe County, Alabama
(Parauka, U.S. Fish and Wildlife Service, pers. comm. 1995). This
specimen represented the first confirmed record of Alabama sturgeon in
about 9 years. This fish was moved to a hatchery where it later died.
On April 18, 1995, an Alabama sturgeon captured by fishermen below
Claiborne Lock and Dam was turned over to ADCNR and Service biologists.
This fish was carefully examined, radio-

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tagged, and returned to the river where it was tracked for 4 days
before the transmitter switched off (Parauka, pers. comm. 1995). In
June 1995, it was determined that the tag had dislodged. On May 19,
1995, our biologists took another Alabama sturgeon in Monroe County,
Alabama, near the 1993 collection site. Unfortunately, shortly after
the fish was tagged and released, it was found entangled and dead in a
vandalized gill net lying on the river bottom (Parauka, pers. comm.
1995). On April 26, 1996, a commercial fisherman caught, photographed,
and released an Alabama sturgeon (estimated at about 51 to 58 cm (20 to
23 in) total length and 1 kg (2 lb) weight) in the Alabama River, 5 km
(3 mi) downstream of Millers Ferry Lock and Dam (Reeves, ADCNR, pers.
comm. 1996).
Due to the historic decline, lack of collection success, and the
apparent rarity of the sturgeon, members of the Mobile River Basin
Recovery Coalition began discussions in the spring of 1996 to develop
and implement a conservation plan for the Alabama sturgeon that could
receive wide support. A draft plan was subsequently endorsed in 1997 by
the ADCNR, Mobile District Corps, representatives of the Alabama-
Tombigbee Rivers Coalition, and us (1997 Conservation Plan). This Plan
identified the need to develop life history information through
capture, tagging, and telemetry; capture of broodstock for breeding and
potential population augmentation; construction of hatchery facilities
for sturgeon propagation; and habitat identification and quantification
in the lower Alabama River (see discussion of 1997 Conservation Plan
under State Conservation Efforts section).
In March 1997, the ADCNR implemented the collection component of
the 1997 Conservation Plan. The Geological Survey of Alabama, Corps,
Waterways Experiment Station, Alabama Power Company, and the Service
also participated in the effort. Up to four crews were on the river at
any one time using gill nets and trot lines. Most of the effort focused
on the lower Alabama River where recent previous captures had been
made. Personnel from the ADCNR caught one small sturgeon (1 kg (2 lb)
weight) on April 9, 1997, immediately below Claiborne Lock and Dam.
The ADCNR continued fishing for sturgeon through the fall and
winter and collected another sturgeon downstream of Millers Ferry Lock
and Dam on December 10, 1997. This fish was also transported to the
Marion Fish Hatchery, where both fish were held for potential use as
broodstock. In January 1998, the two fish were biopsied to determine
their sex. The April specimen was found to be a mature female with
immature eggs, whereas the December fish was a mature male.
Alabama broodstock collection efforts in 1998 resulted in the
capture of a single fish on November 12, 1998. A biopsy performed in
December found the specimen to be a reproductively inactive male. The
two 1997 fish were also biopsied at this time, and were determined to
be candidates for propagation in the spring of 1999.
On March 27, 1999, the mature male and female sturgeon captured
during 1997 were induced to spawn. The female produced about 4,000
mature eggs; however, the male failed to produce sperm, and the
fertilization attempt was unsuccessful. On April 4, 1999, the captive
female died from a bacterial infection that was apparently aggravated
by spawning stress. Another sturgeon was captured on April 14, 1999, by
commercial fishermen downstream of Claiborne Lock and Dam, delivered to
ADCNR fisheries biologists, and transported to the Marion State
Hatchery. This sturgeon died at the hatchery in February 2000,
following a biopsy that identified it as a female. Another Alabama
sturgeon captured on August 18, 1999, in the Claiborne Pool also died
at the hatchery shortly after transport. To date, more than 4,000 man-
hours of fishing effort by professional fisheries biologists over the
past 3 years has resulted in the capture of five fish, three of which
have died in captivity.
The chronology of commercial harvest, scientific collections, and
incidental catches by commercial and sport fishermen demonstrate a
significant decline in both the population size and range of the
Alabama sturgeon in the past 100 years. Historically, the fish occurred
in commercial abundance and was found in all major coastal plain
tributaries of the Mobile River system. The Alabama sturgeon has
apparently disappeared from the upper Tombigbee, lower Black Warrior,
lower Tallapoosa, and upper Cahaba, where it was last reported in the
1960s; the lower Coosa, last reported around 1970; the lower Tombigbee,
last reported around 1975; and lower Cahaba, last reported in 1985
(Clemmer 1983; Burke and Ramsey 1985, 1995; Williams and Clemmer 1991;
Mayden and Kuhajda 1996). The fish is known from a single 1985 record
in the Mobile-Tensaw Delta; however, no incidental catches by
commercial or recreational fishermen have been reported since that
time. Recent collection efforts indicate that very low numbers of
Alabama sturgeon continue to survive in portions of the 216-km (134-mi)
length of the Alabama River channel below Millers Ferry Lock and Dam,
downstream to the mouth of the Tombigbee River.
The historic population decline of the Alabama sturgeon was
probably initiated by unrestricted harvesting near the turn of the
century. Although there are no reports of commercial harvests of
Alabama sturgeon after the 1898 report, it is likely that sturgeon
continued to be affected by the commercial fishery. Keenlyne (1997)
noted that in the early years of the 20th century, shovelnose sturgeon
were considered a nuisance to commercial fishermen and were destroyed
when caught. Interviews with commercial and recreational fishermen
along the Alabama River indicate that Alabama sturgeon continued to be
taken into the 1980s (Burke and Ramsey 1985). Studies of other sturgeon
species suggest that newly exploited sturgeon fisheries typically show
an initial high yield, followed by rapid declines. With continued
exploitation and habitat loss little or no subsequent recovery may
occur, even after nearly a century (National Paddlefish and Sturgeon
Steering Committee 1993, Birstein 1993).
Although unrestricted commercial harvesting of the Alabama sturgeon
may have significantly reduced its numbers and initiated a population
decline, the present curtailment of the Alabama sturgeon's range is the
result of 100 years of cumulative impacts to the rivers of the Mobile
River Basin (Basin) as they were developed for navigation, especially
during the last 50 years. Navigation development of the Basin affected
the sturgeon in major ways. This development significantly changed and
modified extensive portions of river channel habitats, blocked long-
distant movements, including migrations, and fragmented and isolated
sturgeon populations.
The Basin's major rivers are now controlled by more than 30 locks
and/or dams, forming a series of lakes that are interspersed with
short, free-flowing reaches. Within the sturgeon's historic range,
there are three dams on the Alabama River (built between 1968 and
1971); the Black Warrior has two (completed by 1959); and the Tombigbee
has six (built between 1954 and 1979). These 11 dams affect and
fragment 970 km (583 mi) of river channel habitat. Riverine (flowing
water) habitats are required by the Alabama sturgeon to successfully
complete its life cycle. Alabama sturgeon habitat requirements are not
met in impoundments, where weak flows result in accumulations of silt

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making bottom habitats unsuitable for spawning, larval and postlarval
development, and, perhaps, for the bottom-dwelling invertebrates on
which the sturgeon feed.
Prior to widespread construction of locks and dams throughout the
Basin, Alabama sturgeon could move freely between feeding areas, and
from feeding areas to sites that favored spawning and development of
eggs and larvae. Additionally, the sturgeon may have sought thermal
refuges during summer months, when high water temperatures became
stressful. Such movements might have been extensive, since other
Scaphirhynchus species of sturgeons are known to make long-distance
movements exceeding 250 km (155 mi) (Moos 1978, Bramblett 1996). Locks
and dams, however, fragmented the sturgeons' range, forming isolated
subpopulations between the dams where all the species' habitat needs
were not necessarily met. With avenues of movement and migration
restricted, these subpopulations also became more vulnerable to local
declines in water and habitat quality caused by riverine and land
management practices and/or polluting discharges. With access
restricted by dams, habitat fragmentation also precluded recolonization
of areas when subpopulations became extirpated.
Most of the major rivers within the historic range of the Alabama
sturgeon have also been dredged and/or channelized to make them
navigable. For example, the 740-km (459-mi) long Warrior-Tombigbee
Waterway channel was originally dredged to 45 meters (m) by 2 m (148
feet (ft) by 7 ft) and later to 61 m by 3 m (200 ft by 10 ft). The
lower Alabama and Tombigbee Rivers are routinely dredged in areas of
natural deposition to maintain navigation depths. Dredged and
channelized river reaches, in comparison to natural river reaches, have
reduced habitat diversity (e.g., loss of shoals, removal of snags,
removal of bendways, reduction in flow heterogeneity, etc.), which
results in decreased aquatic diversity and productivity (Hubbard et al.
1988 and references therein). The deepening and destruction of shoals
and shallow runs or other historic feeding and spawning sites as a
result of navigation development likely contributed to local and
overall historic declines in range and abundance of the Alabama
sturgeon.
Dams constructed for navigation and power production also affected
the quantity and timing of water moving through the Basin. Water depths
for navigation are controlled through discharges from upstream dams,
and flows have also been changed as a result of hydroelectric
production by upstream dams (Buckley 1995; Freeman and Irwin, U.S.
Geological Survey, pers. comm. 1997).
The construction and operation of dams and development of
navigation channels were significant factors in curtailment of the
historic range of the Alabama sturgeon and in defining its current
distribution. While these structures and activities are likely to
continue to influence the environment (habitat) and its use by this
species and others, the present effects of the operation of existing
structures, flow regulation, and navigation maintenance activities on
the sturgeon are poorly understood, in large part due to lack of
specific information on the behavior and ecology of the Alabama
sturgeon.
In 1994, we conducted an impact analysis with the Corps on
potential effects of channel maintenance and other Federal actions in
the Alabama River on the Alabama sturgeon. The analysis was summarized
in a White Paper by Biggins (1994) (see text of the White Paper below).
Based on limited information on the Alabama sturgeon and studies of the
shovelnose sturgeon in the Mississippi River system, the White Paper
noted that Alabama sturgeon appear to require strong currents in deep
waters over relatively stable substrates for feeding and spawning, and
they are not generally associated with the unconsolidated substrates
that settle in slower current areas. Channel maintenance is primarily
associated with specific shallow areas with unconsolidated substrates
and produces small, localized, and temporary elevations of turbidity.
Based on 1994 information, the White Paper concluded that the annual
maintenance dredging program in the Alabama and lower Tombigbee Rivers
does not adversely affect the Alabama sturgeon. Recent studies have
also supported the conclusions of the White Paper (see discussion of
maintenance dredging under Factor A). The White Paper in its entirety
is at the end of this final rule.
In summary, the Alabama sturgeon has undergone marked declines in
population size and range during the past century. Over-fishing and
historical navigation development were significant factors in the
sturgeon's decline. The Alabama sturgeon currently inhabits only about
15 percent of its historic range, and the species is known to survive
only in the Alabama River channel below Millers Ferry Lock and Dam,
downstream to the mouth of the Tombigbee River.

Previous Federal Actions

We included the Alabama sturgeon in Federal Register Notices of
Review for candidate animals in 1982, 1985, 1989, and 1991. In the 1982
and 1985 notices (47 FR 58454 and 50 FR 37958), this fish was included
as a category 2 species (a species for which we had data indicating
that listing was possibly appropriate, but for which we lacked
substantial data on biological vulnerability and threats to support a
proposed rule; we discontinued designation of category 2 species in the
February 28, 1996, Notice of Review (61 FR 7956)). In the 1989 and 1991
notices (54 FR 554 and 56 FR 58816), the Alabama sturgeon was listed as
a category 1 candidate species (a species for which we have on file
sufficient information on biological vulnerability and threats to
support issuance of a proposed rule).
On June 15, 1993, we published a proposed rule to list the Alabama
sturgeon as endangered with critical habitat (58 FR 33148). On July 27,
1993, we published a notice scheduling a public hearing on the proposed
rule (58 FR 40109). We published a notice on August 24, 1993 (58 FR
44643), canceling and rescheduling the hearing. On September 13, 1993
(58 FR 47851), we published a notice rescheduling the public hearing
for October 4, 1993, and extending the comment period to October 13,
1993. We held the October 4 public hearing on the campus of Mobile
College, Mobile, Alabama. On October 25, 1993 (58 FR 55036), we
published a notice announcing a second public hearing date, reopening
the comment period, and stating the availability of a panel report.
This second public hearing was canceled in response to a preliminary
injunction issued on November 9, 1993.
On January 4, 1994 (59 FR 288), we published a notice rescheduling
the second public hearing and extending the comment period. However,
this hearing was subsequently rescheduled in a January 7, 1994, notice
(59 FR 997). We held the second public hearing on January 31, 1994, at
the Montgomery Civic Center, Montgomery, Alabama.
We published a 6-month extension of the deadline and reopening of
the comment period for the proposed rule to list the Alabama sturgeon
with critical habitat on June 21, 1994 (59 FR 31970). On September 15,
1994 (59 FR 47294), we published another notice that further extended
the comment period and sought additional comments on only the
scientific point of whether the Alabama sturgeon still existed. We
withdrew the proposed rule on December 15, 1994 (59

[[Page 26442]]

FR 64794), on the basis of insufficient information that the Alabama
sturgeon continued to exist.
On September 19, 1997, after capture of several individuals
confirming that the species was extant, we included the Alabama
sturgeon in the candidate species Notice of Review (62 FR 49403).
On March 26, 1999, we published a proposed rule to list the Alabama
sturgeon as endangered, without critical habitat (64 FR 14676). We
invited the public and State and Federal agencies to comment on the
proposed listing; the comment period was open through May 26, 1999. On
May 25, 1999, we published a notice announcing a June 24 public hearing
on the proposal at the Montgomery Civic Center and an extension of the
comment period through July 5, 1999 (64 FR 28142). To allow time for
additional public comments, we reopened the comment period on July 12,
1999, through September 10, 1999 (64 FR 37492).
On January 11, 2000, we reopened the comment period (65 FR 1583),
to make available for comment a 1999 study ``The Development of a DNA
Procedure for the Forensic Identification of Caviar'' (Fain et al.
1999). On February 7, 2000 (65 FR 5848), we withdrew consideration of
this study from the decision making process. For clarity and ease of
understanding, we replaced it with a report containing information
relevant to the Alabama sturgeon listing process (Fain et al. 2000). We
accepted comments on this report through March 8, 2000.
We reopened the comment period again on February 16, 2000 (65 FR
7817), to announce the availability of and obtain comments on a
Conservation Agreement and Strategy (Conservation Agreement Strategy)
for the Alabama Sturgeon signed by the ADCNR, the Corps, the Alabama-
Tombigbee Rivers Coalition, and us on February 9, 2000. We accepted
comments on the Conservation Agreement Strategy and its relevance and
significance to the listing decision until March 17, 2000.
We published Listing Priority Guidance for Fiscal Year 2000 in the
Federal Register on October 22, 1999 (64 FR 57114). That guidance
clarifies the order in which we will process rulemakings. Highest
priority is processing emergency listing rules for any species
determined to face a significant and imminent risk to its well-being
(Priority 1). Second priority (Priority 2) is processing final
determinations on proposed additions to the lists of endangered and
threatened wildlife and plants. Third priority is processing new
proposals to add species to the lists. The processing of administrative
petition findings (petitions filed under section 4 of the Act) is the
fourth priority. This final rule is a Priority 2 action and is being
completed in accordance with the current Listing Priority Guidance.

Summary of Comments and Recommendations

We have reviewed all written and oral comments received during the
comment periods and have incorporated information updating the
available data into the appropriate sections of this rule. We have
organized substantive comments concerning the proposed rule, Fain et
al. 2000, and the Conservation Agreement Strategy into specific issues,
which may be paraphrased. We grouped comments of a similar nature or
subject matter into a number of broader issues. These issues and our
response to each are summarized in the three subsections below.

Proposed Rule

In the March 26, 1999, proposed rule (64 FR 14676), we requested
all interested parties to submit factual reports or information that
might contribute to the development of a final rule. We sent direct
notification of the proposal to 192 institutions and individuals,
including Federal and State agencies, county governments, scientific
organizations, and interested parties. We published legal notices
announcing the proposal and inviting public comment on April 18, 1999,
in the Montgomery Advertiser, Montgomery, Alabama; and the Mobile
Press-Register, Mobile, Alabama. The comment period closed on May 26,
1999. On May 6, 1999, we received a request for a public hearing from
the Alabama-Tombigbee Rivers Coalition. We published a notice on May
25, 1999 (64 FR 28142), scheduling the public hearing and extending the
comment period through July 5, 1999. We sent direct notification of the
hearing and comment period extension to Federal and State agencies,
county governments, scientific organizations, and other interested
parties. Legal notices announcing the public hearing and comment period
extension were published on June 20, 1999, in the Montgomery
Advertiser, Montgomery, Alabama; and the Mobile Press-Register, Mobile,
Alabama. We held the public hearing at the Montgomery Civic Center,
Montgomery, Alabama, on June 24, 1999, with approximately 1,000 people
in attendance. We received oral comments from 78 individuals; of these,
66 expressed opposition to the listing, 3 supported the action, and 10
did not specifically state their position on the listing. Because of
widespread concern over the proposed action, we reopened the comment
period on July 12, 1999 (64 FR 37492), through September 10, 1999.
During the comment periods, we received approximately 4,000 cards,
letters, and reports concerning the proposal. Most expressed opposition
to, or concern about the proposed listing; however, a number of
individuals supported the action. Opposition to the proposed listing
primarily centered on perceived economic effects of the action,
questions about taxonomy and science, and the adequacy of current State
conservation actions to protect the sturgeon. We received comments from
four Federal agencies and seven State agencies. The remaining comments
were from individuals or representatives of organizations or groups.
The Governor of Alabama and the ADCNR stated that existing State
protection and recovery efforts are adequate, and opposed the listing.
We convened a team of Service experts to review the issues raised,
including issues of taxonomy and genetics, during the comment period
for the Alabama sturgeon proposed rule and to ensure they were fully
and correctly addressed prior to preparation of our final decision
document on this species. Below are issues raised in these comments
relating to this action and our responses to each.
Issue 1: The proposed listing was not based on the best scientific
and commercial data available, as required by section 4(b)(1) of the
Act. The literature cited to support the proposed rule was either not
applicable, erroneous, incomplete, misinterpreted, or simply wrong.
Response: We thoroughly reviewed all scientific and commercial data
in our possession in preparing the proposed rule. We sought and
reviewed historic and recent publications and unpublished reports
concerning the Alabama sturgeon, closely related species, and sturgeon
literature in general, as well as literature and reports on human
impacts to river systems and resulting responses in faunal composition
and channel habitat integrity. Not all literature or reports reviewed
were cited; however, the appropriate literature was cited to document
the text in the proposal. We used our best professional judgment and,
while we considered all of the information, we relied upon data and
documents which in our professional opinion are the best scientific and
commercial data and the most reliable.
Issue 2: The Service does not have sufficient scientific
information to

[[Page 26443]]

conclude that the Alabama sturgeon is a distinct species from the
common shovelnose sturgeon.
Response: The Alabama sturgeon is nationally and internationally
considered a valid species. The Alabama sturgeon was initially
described as a distinct species in a peer-reviewed, widely distributed
museum periodical (Williams and Clemmer 1991). The species was
considered valid in a catalog of fishes of Alabama (Boschung 1992) and
in a catalog of fishes of North America (Mayden et al. 1992). Species
status was reassessed, reaffirmed, and published in the ichthyological
journal Copeia (Mayden and Kuhajda 1996). The Alabama sturgeon is
listed as a separate species in State fish books for Alabama (Mettee et
al. 1996) and Mississippi (Ross and Brenneman in press). The Alabama
sturgeon is listed as a valid species in a catalog of fishes of the
world (Eshmeyer 1998). Birstein et al. (1997) included the Alabama
sturgeon in a list of all sturgeon species of the world. The Alabama
sturgeon is considered a distinct and valid species by the American
Society of Ichthyologists and Herpetologists (1995, 1999 in litt.), and
by the Southern Fishes Council Technical Advisory Committee (Warren et
al. in prep.). Thus, the Alabama sturgeon is currently recognized as a
valid taxonomic species and will continue to be so recognized unless
overturned at some future date by the scientific community through the
formal publication and peer review process.
Issue 3: The Service should conduct comprehensive taxonomic and
life history studies of the genus Scaphirhynchus on a river system by
river system basis prior to listing.
Response: While having comprehensive knowledge of a species and its
near relatives throughout their geographic ranges prior to listing
would be ideal, it is seldom, if ever, possible. Resolution of all
aspects of taxonomy and life history for this genus could take years,
perhaps decades. The Act requires us to use the best available
information to determine the status of a species, subspecies, or
vertebrate population. The available information clearly indicates that
the Alabama sturgeon is in danger of extinction. Resolving unpublished
taxonomic dissent prior to a proposal or final decision is not
required. The threat assessment that currently applies to the Alabama
sturgeon as a taxonomic species would apply equally to a subspecies or
distinct population segment.
Issue 4: The Service has failed to clearly indicate which reports
or studies they consider to be the best available scientific and
commercial data.
Response: The list of literature cited in the proposal indicates
which reports and studies we consider to be the best available
scientific and commercial data. We have reviewed all information
currently available to us in assessing the status of the Alabama
sturgeon. A list of the literature cited in the proposal is available
upon request, as noted in the proposed and final rules, and was
provided to interested parties during the open comment period. We also
allowed interested parties access to review our files and
administrative record on two occasions. In conducting our analysis, we
noted opposing views available to us on taxonomy; genetics;
distribution and abundance; life history; historic, present, and future
threats; and vulnerability to extinction. We evaluated all information
with regard to its applicability to the determination of species status
under the Act and acceptance by the scientific community.
Issue 5: The Service was provided, and has ignored, information
discrediting species status for the Alabama sturgeon. Only 4 of 17
scientific reports, documents, and statements provided to the Service
in 1993 and 1994 that opposed listing the Alabama sturgeon as a
distinct species at that time, were cited in the 1999 proposed rule.
The Service has ignored all opposing scientific documents, except a
few.
Response: We reviewed the information received in 1993 and 1994
that criticized the taxonomy of the Alabama sturgeon prior to preparing
the March 26, 1999, proposed rule. The views expressed in the documents
were generally summarized in the proposed rule, and several were cited
as examples. In proposed and final rules, as well as in most scientific
documents, only references used to document or clarify statements are
explicitly cited.
The reports referenced by commenters that were not cited in the
proposal criticized the original description of the Alabama sturgeon
(Williams and Clemmer 1991) and expressed alternative views of its
taxonomic status. We reviewed these documents and have not ignored
their views; however, only one taxonomic treatment of the species
(Mayden and Kuhajda 1996) has been published in the 9 years since the
fish was first described. It supersedes the original description and
postdates the unpublished accounts referenced that disputed taxonomic
validity. Mayden and Kuhajda (1996) scientifically documented species
recognition of the Alabama sturgeon. Several national and
internationally available articles have also been published since 1994
that recognize the taxonomic validity of the species (see response to
Issue 2). Absent publication of alternative or differing taxonomic data
and conclusions through the peer review scientific process, the species
will continue to be recognized as Scaphirhynchus suttkusi by the
taxonomic community at large.
Issue 6: No scientists have directly challenged any of the
scientific data or conclusions of the dozen scientists who question the
taxonomy of the Alabama sturgeon.
Response: With the one, limited exception discussed below, none of
the data and conclusions of the scientists who question the taxonomy of
the Alabama sturgeon have been made available for review by the
scientific ichthyological community through the accepted process of
peer review and publication. Only a single peer-reviewed paper has been
published that questions the taxonomy of the Alabama sturgeon
(Bartolucci et al. 1998). However, that publication was a methods paper
concerning a statistical approach to compare the significance of
morphological characters. It was published in a statistically oriented
journal and not in a zoological, ichthyological, or systematics
journal, and it made no attempt to formally revise the taxonomy of the
Alabama sturgeon. We received letters from ichthyologists during the
comment period pointing out shortcomings of Bartolucci et. al (1998)
for taxonomic purposes. In a review of the systematics and taxonomy of
the Alabama sturgeon, Mayden and Kuhajda (1996) presented new data,
addressed many of the criticisms of the original description, and
substantiated species status for the Alabama sturgeon.
Issue 7: The Service did not list the references that were cited in
the proposed rule.
Response: In order to save publication space and expense, it is
common practice not to include the references cited in the published
proposal. The proposed rule clearly noted that a complete list of
references was available upon request. We have provided copies of
references to all who have requested them.
Issue 8: Some of the literature cited for scientific background was
criticized as outdated and superseded by later reports. Other studies
were said to be irrelevant to the status of the sturgeon because they
did not directly address the Alabama sturgeon.
Response: We disagree with the assessment that the literature cited
in the proposed rule is outdated and

[[Page 26444]]

superseded by later reports. Historic status reviews and surveys were
cited, along with more recent studies (see Background section), to
document efforts to determine the status of the species over a period
of two decades. Review of studies on closely related and better known
sturgeons provides virtually the only insight to the life history,
ecology, and vulnerability of the Alabama sturgeon. It is common and
accepted practice in science to deduce the needs and vulnerability of
poorly known, rare species, or those that are difficult to study, by
using information from more common and better known, related species.
It is also common in science to use surrogate species to deduce effects
of environmental changes on another species with appropriate caveats
that recognize known similarities and differences. For example, it is a
common practice in the biomedical sciences to use experimental studies
of laboratory mice to infer the potential carcinogenic effects of
environmental contaminants and to evaluate the physiological effects of
new drug treatments before they are ever tested on humans.
Issue 9: The Service still claims that the 1991 description of the
Alabama sturgeon, discredited by several scientists, is the best
available information on the fish.
Response: We recognize errors in the original description (Williams
and Clemmer 1991) that have been brought to our attention since 1993.
Furthermore, we explicitly reference a rigorous taxonomic and
systematic evaluation published in the journal Copeia (Mayden and
Kuhajda 1996) that firmly establishes the species name, and the species
name is widely used in peer-reviewed publications. In keeping with
accepted practices in scientific nomenclature and regardless of errors
in the original description, the Williams and Clemmer (1991) article
will continue to be recognized by the ichthyological professional
community as the source of the name Scaphirhynchus suttkusi as long as
the taxonomy is considered valid (see also response to Issue 16''). As
noted in our response to Issue 2,'' the Alabama sturgeon is currently
and widely recognized in published literature as a valid taxonomic
species.
Issue 10: Certain information presented in the proposal regarding
the sturgeon's habitat needs, reproductive cycles, and life history
requirements is without basis in fact or science.
Response: We have used the best available information for assessing
the sturgeon's biological needs. This information has been in the form
of peer-reviewed literature and professional scientific reports. The
Alabama sturgeon's habitat needs, reproductive cycles and life history
requirements are not completely known. For those areas where there is
insufficient or no information we have utilized information garnered
from peer-reviewed scientific studies of the closely related pallid
sturgeon and shovelnose sturgeon (see response to Issue 8'').
Issue 11: Scientific disagreement with the 1991 Williams and
Clemmer description constitutes substantial disagreement among
recognized experts.
Response: Taxonomic disagreements are not uncommon in any field of
systematic biology. While there may be individuals that disagree with
the sturgeon's species status, we do not think that this disagreement
is substantial. Taxonomic disagreements are resolved through the peer-
review publication process, where evidence and interpretation are laid
out to the rigorous scrutiny of the scientific community. None of the
biologists who disagree with the validity of the specific status of the
Alabama sturgeon has presented his or her views through the formal
process of submitting papers to appropriate zoological journals. We
will give consideration only to those disagreements which are found in
the appropriate zoological journals. Regardless of the taxonomic status
recognized in the proposal and final rule, the scientific process
remains available to dissenting opinions through formal peer-review
publication in appropriate journals.
Issue 12: Mayden and Kuhajda (1996) failed to do a thorough river
system by river system analysis of shovelnose sturgeon.
Response: The Mayden and Kuhajda (1996) paper is the most thorough
and comprehensive analysis of Alabama sturgeon systematics and taxonomy
published to date. We are required to use the best scientific and
commercial information that is available. The information and
conclusions presented in this account were peer-reviewed and accepted
for publication by Copeia, a highly respected scientific journal, and
one recognized as appropriate for describing new species of fish.
Issue 13: The Mayden and Kuhajda (1996) paper is not the most
recent science regarding the taxonomy of the Alabama sturgeon.
Bartolucci et al. (1998) reviewed, criticized, and trumped the Mayden
and Kuhajda (1996) paper.
Response: Bartolucci et al. (1998) was published in a journal
oriented to statistical methodology, not an ichthyological or
systematics journal. This paper used Bayesian Analysis statistical
methodology to compare the principal components of measurement data
from samples of Alabama and shovelnose sturgeon. Their results
supported previous unpublished conclusions (Howell et al. 1994) that
the Alabama and shovelnose sturgeon were indistinguishable by principal
component analyses of measurement data. The publication did not
identify the measurement data that were analyzed, nor was the source of
their data cited. Dr. Bartolucci later clarified in submissions at the
June 1999 public hearing on the proposed rule that data provided by
Williams and Clemmer (1991) were used. In addition, Bartolucci et al.
(1998) did not review, criticize, or even reference the Mayden and
Kuhajda (1996) evaluation of the taxonomy and systematics of the
Alabama sturgeon, and additional mensural (based on measurements) and
meristic (based on counts) data, as well as new diagnostic characters
presented by Mayden and Kuhajda (1996) were not addressed.
Issue 14: The Service financially underwrote the 1996 Mayden and
Kuhajda paper through a Service contract.
Response: We did not provide funds or any other type of support for
the 1996 Mayden and Kuhajda paper.
Issue 15: The Service failed to evaluate Bartolucci et al. (1998)
in its 1998 Status Review Report for the Alabama sturgeon and failed to
analyze or consider the publication in the proposed rule, as evidenced
by an erroneous reference to the paper in the proposal.
Response: We received comments on our 1998 Status Report from Dr.
Howell referred to the publication of a recent and relevant paper
(Bartolucci et. al 1998) and, at our request, provided us with a copy.
We reviewed, analyzed, and considered the information published in
Bartolucci et al. (1998) and cited the paper in the proposed rule as
part of a brief review of the taxonomy of the Alabama sturgeon (refer
to Issue 13 for a more detailed discussion of our analysis of this
paper). We acknowledge that the text in the proposed rule is misleading
as to the statistical methodology employed by Bartolucci et al. (1998).
Therefore, we have modified the language to clarify that Bartolucci et
al. (1998) used Bayesian Analysis statistical methodology to compare
the multivariate means of measurements taken from samples of Alabama
and shovelnose sturgeon (see Background section).
Issue 16: The Service has incorrectly cited the rules set forth by
the

[[Page 26445]]

International Code of Zoological Nomenclature (ICZN). Complying with
the rules does not validate a species. ICZN is heavily based on the law
of priority. Based on priority, Scaphirhynchus suttkusi is a synonym of
S. platorynchus.
Response: The ICZN deals with the criteria for publication of new
scientific names. Chapter 3, Article 7, of the ICZN recommends
publication in an appropriate scientific journal or monographic series.
As stated in the proposed rule, the description of the Alabama sturgeon
(Williams and Clemmer 1991) complies with ICZN rules and
recommendations. Chapter 6, Article 23, of the ICZN sets forth the
Principle of Priority. This principle states that The valid name of a
taxon is the oldest available name applied to it * * * The oldest name
applied to a distinct species of Scaphirhynchus endemic to the Mobile
River Basin is Scaphirhynchus suttkusi Williams and Clemmer 1991.
Issue 17: The Service should request the ICZN to render an opinion
on the question of the taxonomic validity of the Alabama sturgeon.
Response: The purpose of the ICZN's Principle of Priority is to
promote stability of names. In rare cases, the ICZN may rule on
nomenclature priority if requested. Regarding disagreements over newly
described species, the accepted procedure is to present data,
conclusions, and nomenclature changes in appropriate peer-reviewed
journals.
Issue 18: Various genetic tests have been conducted on Alabama
sturgeon, shovelnose, and pallid sturgeon. The results of these tests
have been inconclusive and do not support the listing of the Alabama
sturgeon as an endangered species.
Response: The proposed rule recognizes the limited results of
genetic evaluations for distinguishing species of Scaphirhynchus.
However, genetic studies cited in the proposed rule, and several
received during the comment periods have been consistent with
biogeographic arguments for recognizing Alabama sturgeon as an isolated
phylogenetic (classification of organisms based on their deduced
evolutionary relationships) lineage (Campton et al. 1995, 1999, in
press; Genetic Analyses, Inc. 1994, 1995; Mayden et al. 1999). Mayden
and Kuhajda (1996) further demonstrated that the degree of
morphological divergence between Alabama and shovelnose sturgeon
warranted taxonomic species status for the former. In preparing the
proposed rule, we relied primarily upon the taxonomic and systematic
evaluation of Mayden and Kuhajda (1996). The genetic studies noted
above are consistent with that distinction. The absence of detectable
differences by other investigators (e.g., Schill and Walker 1994, Fain
et al. 2000) only attests to the very close evolutionary relationship
between Alabama and shovelnose sturgeon. The Alabama sturgeon meets the
definition of an endangered species.
Issue 19: The Service has completely ignored the Schill and Walker
report (1994), which demonstrated that the shovelnose sturgeon and the
Alabama sturgeon are the same species.
Response: The proposed rule cited Schill and Walker (1994) who
noted that shovelnose, pallid, and Alabama sturgeon were
indistinguishable at the mitochondrial cytochrome b locus. The proposed
rule also noted similar findings for other currently recognized
species. Dr. Jeffrey Wells (in litt. 1999), a geneticist hired by the
Alabama-Tombigbee Rivers Coalition to review sturgeon genetic studies,
also concluded that the Schill and Walker study, among others, does not
disprove that the Alabama sturgeon is a separate species.
Issue 20: The Service hired Genetic Analyses, Inc., to conduct
additional genetic studies. The 1999 proposal did not address their
1994 recommendation for more studies.
Response: In 1994, we were made aware of an imminent nuclear DNA
genetic study of pallid and shovelnose sturgeon to be jointly funded by
the U.S. Army Corps of Engineers, Omaha District, and the Service's
Region 6. At our request, tissues from a single Alabama sturgeon
available at that time were included in this previously arranged study.
The 1994 Genetic Analyses, Inc., data indicated some genetic divergence
of Alabama sturgeon from both pallid and shovelnose sturgeon. The
report noted, however, that their results were based upon DNA samples
from a single Alabama sturgeon and encouraged expanding the
investigation should additional specimens become available. In 1995,
Genetics Analyses, Inc., reported similar genetic results on two
additional, recently collected Alabama sturgeon. They also noted
differences between individual Alabama sturgeon, and again recommended
additional studies. We provided these conclusions and recommendations
in the proposal.
Issue 21: The U.S. Army Corps of Engineers, Mobile District,
requested clarification of a number of issues raised in the Genetic
Analyses, Inc., 1994 draft report. These issues were not addressed in
the 1994 Genetic Analyses, Inc., final report.
Response: According to information available to us, the request for
clarification by the Mobile District was made to the Omaha District,
U.S. Army Corps of Engineers. The lack of response to requests for
clarification from one Corps District to another has no bearing on us
or the final report.
Issue 22: The Service claims that the three Alabama sturgeon
samples tested by Genetic Analyses, Inc., (1995) are the same species
even though one specimen was found to be genetically different from the
other two, and genetically the same as the shovelnose.
Response: The 1995 study found that all three Alabama sturgeon
genetic samples were substantially divergent from shovelnose and pallid
sturgeon. However, two new Alabama sturgeon samples were equally
divergent from a previously tested Alabama sturgeon sample. For this
reason, Genetic Analyses, Inc., recommended examining nuclear DNA
genetic diversity within the Alabama sturgeon population as additional
samples become available. We made these findings clear in the proposed
rule.
Issue 23: The Campton et al. (1995) report found a difference in
only 1 base pair out of 435 between the Alabama sturgeon and the
shovelnose sturgeon. The report concluded that the Alabama sturgeon is
either a separate subspecies or a distinct population segment. The
Service failed to explain the conclusion of the Campton et al. (1995)
report and inappropriately interpreted the report to mean only that the
Alabama sturgeon is a separate species.
Response: Campton et al. (1995) noted that the level of genetic
similarity that they observed between Alabama sturgeon and pallid and
shovelnose sturgeon was more typical of isolated populations or
subspecies than congeneric species. However, they also referred the
reader to similar levels of genetic similarity between species and even
genera of cichlid fishes in Africa. The report concluded that the
genetic data were consistent with biogeographic and morphological
arguments for recognizing S. suttkusi (Alabama sturgeon) as an
endangered species or distinct population segment * * *. In our summary
of their results, we noted that the relative genetic differences among
the three species was small. However, Campton et al. (1995) clearly
demonstrated that pallid and shovelnose sturgeon are genetically
distinct in areas where they naturally co-occur, and they also provided
genetic (mtDNA) data consistent with the taxonomic distinction of
Alabama sturgeon from shovelnose sturgeon. A follow-up study (Campton
et al. 1999)

[[Page 26446]]

reaffirmed their earlier results regarding the genetic distinctiveness
of Alabama sturgeon with additional samples of pallid and shovelnose
sturgeon from the Atchafalaya River. To date, those investigators
(Campton et al. 1995, 1999) have examined 75 specimens of
Scaphirhynchus from the Missouri and Atchafalaya Rivers, and none of
the specimens possessed the mtDNA haplotype that characterized the
three Alabama sturgeon they examined. One nucleotide substitution out
of 435 base pairs demonstrates only the relatively slow rate (i.e.,
over geological time scales) at which genetic changes in DNA molecules
occur over time. The genetic data are, thus, consistent with
biogeographic arguments that Alabama sturgeon have been isolated in the
Mobile River Basin for at least 10,000 years.
Issue 24: Dr. Jeffery Wells reviewed Campton et al. (1995), and
Mayden et al. (1999) (received during the open comment period), and
conducted mtDNA analysis on an additional eight shovelnose sturgeon
using techniques described by Campton et al. (1995). Dr. Wells
criticized the conclusions reached in both previous studies and stated
that these studies, as well as his own, were inconclusive in
determining the potential status of the Alabama sturgeon as a separate
species using mtDNA.
Response: Genetic data are not commonly used to prove that
allopatric (do not occur in the same place) populations are different
species. However, Campton et al. (1995, 1999) and Mayden et al. (1999)
identified a unique mtDNA haplotype for Alabama sturgeon that has not
been observed among over 40 shovelnose and 30 pallid sturgeon examined
to date from the Mississippi and Missouri River Basins. While this
genetic data alone does not prove that they are distinct species, it is
consistent with Mayden and Kuhajda's (1996) taxonomic description.
Issue 25: Reviews of Campton et al. (1999) by Drs. Mike Howell and
Jeffrey Wells clearly indicate that more genetic testing is required to
determine the true genetic status of the three species of
Scaphirhynchus.
Response: We received Campton et al. (1999) during the open comment
period and, therefore, did not consider it in preparing the proposal.
However, as mentioned previously, the report of Campton et al. (1999)
is consistent with the results of their previous study (Campton et al.
1995) and reaffirms their conclusions regarding the genetic
distinctness of the three Scaphirhynchus species. Genetics of
Scaphirhynchus is poorly known and we acknowledge that more work is
needed. However, as discussed in the previous issue and Issue 60,
genetic data alone is not conclusive in distinguishing species,
particularly for those species which do not occur together. However,
the genetic studies conducted to date by Campton et al. (1995, 1999)
are consistent with the results of Mayden and Kuhajda (1996) and the
taxonomic distinction of Alabama sturgeon.
Issue 26: Dr. Stephen Fain was inappropriately influenced by a
Service listing biologist to withdraw from cooperative genetic studies
of the Alabama sturgeon.
Response: Dr. Fain is the DNA Research Team Leader at the National
Fish and Wildlife Service Forensics Laboratory in Ashland, Oregon. We
were notified by ADCNR fisheries biologists that they had provided Dr.
Fain with samples for genetic studies on the genus Scaphyrhinchus. We
subsequently contacted Dr. Fain to ensure that he was aware of several
previous genetic and morphological studies on the genus. We did not ask
Dr. Fain to withdraw from cooperative genetic studies. We also informed
Dr. Fain that we would welcome additional information on genetics of
the Alabama sturgeon. Dr. Fain's research was completed in late 1999,
and summarized in Fain et al. (1999, 2000). These reports were made
available for public review and comment by reopening the comment period
between January 11 and March 5, 2000. Comments pertaining to this work
are summarized below in Issues 59 through 61.
Issue 27: The Service failed to explain which, if any, of the five
factors they are relying upon to justify the proposed listing.
Response: Factor A clearly establishes the present curtailment of
range and the apparent causes of curtailment. Factor E states that the
primary threat to the immediate survival of Alabama sturgeon is its
small population size and its apparent inability to offset mortality
rates with reproduction and recruitment, as evidenced by declining
rates of capture over the past two decades. At the conclusion of the
summary of factors, the proposal stated: Endangered status is
appropriate for the Alabama sturgeon due to extensive curtailment of
its range and extremely low population numbers.
Issue 28: The Service's conclusion that current habitat conditions
imperil the Alabama sturgeon is unsupported by the available scientific
information.
Response: Factor A notes the disappearance of the Alabama sturgeon
from about 85 percent of its historic range, and that human activities
are associated with its decline in range. This finding is supported by
historic trends and recent collection efforts (see Background section).
Our primary concern under Factor A is whether the quantity of habitat
currently occupied by the sturgeon is adequate to support a self-
sustaining, viable population. The Background section of the proposal
and this final rule also cite studies reporting long-distance movements
of the other species of Scaphirhynchus, possibly between feeding and
spawning sites. While most of the impacts to the sturgeon's habitat
were historic, gradual, and cumulative, they still may affect the
sturgeon's ability to move within the system between areas for feeding
and reproduction. A reduction in natural range from about 1,600 km
(1,000 mi) to 216 km (134 mi) of river channel is certainly cause for
concern in a wide-ranging fish species with possible migratory needs.
This concern is supported by other examples in the fisheries literature
(e.g., salmon, striped bass, and robust redhorse, as well as other
sturgeon species). Occupied habitat quality was not directly identified
as a known threat. We have some concern that the timing of water
releases below Millers Ferry Lock and Dam may have negative effects on
sturgeon reproduction. Other sturgeon species' reproductive success has
been affected by changes in water quantity and timing (see studies
cited in the discussion under Factor A). We acknowledge, however, that
the lack of specific information on Alabama sturgeon reproductive
habitat requirements or the use of this area by the sturgeon for
reproduction limits our ability to draw definite conclusions as to
current impacts on the Alabama sturgeon.
Issue 29: The Service has failed to consider the myriad of existing
Federal, State, and local laws that provide additional protection for
the Alabama sturgeon and its habitat. Factor D fails to justify listing
the Alabama sturgeon as an endangered species.
Response: We agree that a number of existing laws and regulations
benefit the sturgeon and its habitat. Factor D, however, addresses the
inadequacy of protective regulatory mechanisms. In the proposed rule
and in this final rule, we note that, within the scope of other
environmental laws or Alabama State law, there is currently no
requirement to specifically consider the effects of actions on the
Alabama sturgeon or ensure that a project will not jeopardize its
continued existence. We concur that this issue alone does not present a
significant threat to the Alabama sturgeon at this time. The Act
requires

[[Page 26447]]

that a determination of endangered or threatened status be made on any
one of the five factors under section 4(a)(1). See the discussion under
the Summary of Factors Affecting the Species section for a complete
description of the threats.
Issue 30: Minimum Viable Population (MVP) is a theoretical
hypothesis and not an established quantifiable technique. The Service
has no data (population size, mortality and reproduction rates, etc.)
to determine an MVP.
Response: Over the past few decades, biologists have been studying
the processes of extinction for small populations (see Soule 1987). The
likelihood of species extinction and/or extirpation (loss) of isolated
populations increases dramatically as population size diminishes
(Shaffer 1987). The Alabama sturgeon has been reduced to about 15
percent of its historic range. Collection history and anecdotal
accounts from commercial fishermen demonstrate a continued decline in
catches over the past few decades or, at a minimum, an increased effort
required to collect the fish.
A number of techniques have been developed to estimate the
probability of extinction for populations of animals over time, or to
predict the minimum population size (MVP) necessary for a population to
persist for a given time period (see Soule 1987). In the proposed rule,
we did not attempt to determine a hypothetical numerical population
size necessary to sustain the Alabama sturgeon, and we concur that the
information does not currently exist to define a numerical MVP. We used
the MVP terminology to depict that the Alabama sturgeon's increasing
restriction in range, its rarity, and its life history render the
species highly vulnerable to chance extinction. However, for purposes
of clarity, we have removed discussion of MVP from this final rule and
instead refer to the threat presented to the Alabama sturgeon by its
small population size.
Issue 31: The Service has offered no proof or evidence of a current
or continuing decline in the Alabama sturgeon's population numbers in
the Alabama River. Alabama sturgeon have been rare for decades and are
as plentiful in the Alabama River today as they were 25 years ago.
Response: We concur that Alabama sturgeon have probably been
uncommon in the Mobile River Basin for the past few decades. However,
collection data over this time period demonstrate a decline in
distribution, as well as a reduction in population size. For example,
collection data indicate that the species has disappeared from the
Coosa, Tallapoosa, Black Warrior, upper Tombigbee, and upper Alabama
Rivers since the 1960s (see Background section). Interviews with
commercial fishermen and fisheries biologists also indicate that the
Alabama sturgeon has disappeared from the Millers Ferry reach of the
Alabama River, and the Cahaba, lower Tombigbee, and Mobile/Tensaw
Rivers during the past 25 years. Recent collection efforts suggest a
decrease in abundance of the species in the lower Alabama River and the
Claiborne Dam reach during the past 15 years.
The first attempt to determine the status of the Alabama sturgeon
in the Mobile River Basin was by Clemmer (1983). Although an ADCNR
fisheries biologist reported regular catches of shovelnose (=Alabama)
sturgeon in the Cahaba River during the early 1980s, Clemmer documented
recent trends in lower numbers of sturgeon through interviews with
commercial fishermen and professional fisheries biologists. Burke and
Ramsey (1985) reached the same conclusion of declining Alabama sturgeon
from interviews with veteran fisheries biologists, conservation
officers, and full-time commercial fishermen. They conducted random
stratified interviews with full-time commercial fishermen and reported
18 pre-1975 captures and 7 post-1975 captures. Commercial fishermen
reported recent declines in captures of Alabama sturgeon in the Millers
Ferry reach of the Alabama River and the Cahaba River. Burke and Ramsey
(1995) described their ability in 1985 to capture Alabama sturgeon with
relative ease in the Alabama River below Millers Ferry Lock and Dam.
ADCNR biologists Tucker and Johnson (1991, 1992) reported on sturgeon
collection efforts and interviews with conservation officers, fisheries
professionals, and commercial and sports fishermen. They employed a
variety of collection methods in the lower Alabama River, Claiborne
Reservoir, Millers Ferry Reservoir, Tombigbee River, and Cahaba River
without capturing any sturgeon. However, interviews yielded reports of
several recent captures of small sturgeon in the lower Alabama and
Cahaba Rivers during 1991 and 1992. As noted in the proposed rule, the
most intensive fishing effort to date was initiated in early 1997. At
the time of publication of the proposal, more than 3,000 man-hours of
fishing effort directed toward sturgeon were expended over an 18-month
period by professional fisheries biologists. In addition, commercial
and recreational fishermen were asked to report any captures. As a
result of this intensive effort, only three sturgeon were captured in
1997 and 1998. Two additional fish have been collected during intensive
fishing efforts since publication of the proposal in 1999. While it is
unfortunate that directly comparable data do not exist through all
decades, the disappearance of the species from much of its range, the
anecdotal accounts by knowledgeable fisheries biologists and commercial
fishermen of a decline in captures, and the documented intensive
efforts required to capture the species during the last four years
clearly indicate a reduction in the range and numbers of Alabama
sturgeon in the Mobile River Basin over the past two decades.
Issue 32: There is no evidence that the 1898 reported catch of
shovelnose sturgeon were not immature Gulf sturgeon.
Response: The U.S. Commission of Fish and Fisheries (1898)
represents the best available commercial information on sturgeon
fisheries at the turn of the century in the Mobile River Basin. The
shovelnose sturgeon was described in 1820, and the Atlantic sturgeon
(as the Gulf sturgeon was known at that time) was described in 1814.
There is no evidence to suggest that the fisheries biologists compiling
the 1898 statistics were not able to distinguish the two species. The
lake sturgeon, another sturgeon species more similar in appearance to
the Gulf sturgeon than the shovelnose, was also reported in the
statistics.
Issue 33: The Service should address the State's efforts to
conserve the Alabama sturgeon under Factor E.
Response: The ADCNR fishing and hatchery efforts are addressed in
the Background section. The State's 1997 Conservation Plan was
addressed in detail in the proposed rule under Available Conservation
Measures. We have moved this discussion under Factor E in this final
rule, as recommended.
Issue 34: The Service has consistently opposed suggestions to use
shovelnose sturgeon from the Mississippi River drainage to augment
Alabama sturgeon populations in the Mobile River drainage.
Response: Introducing shovelnose sturgeon from the Mississippi
River drainage into the Mobile River drainage is ill-advised at the
present time because doing so could lead to, or accelerate, the
extinction of Alabama sturgeon through hybridization, genetic swamping,
or competition.
Issue 35: The Service requires continued cooperation from
commercial and recreational fishermen and the ADCNR to successfully
recover the

[[Page 26448]]

Alabama sturgeon. Listing the Alabama sturgeon under the Act will
impede that cooperation by enacting Federal take prohibitions and
penalties, and funds available for candidate conservation cannot be
used for recovery efforts.
Response: We agree that cooperation from ADCNR and commercial and
recreational fishermen, as well as others, is essential to the recovery
of the Alabama sturgeon. Section 6 of the Act allows us to enter into
cooperative agreements with States to assist them in conserving
endangered or threatened wildlife. A section 6 cooperative agreement
between the State of Alabama and us recognizes the State's authority to
establish and implement programs for the conservation of federally
listed species and provides funding assistance towards their
conservation. Under the cooperative agreement, the ADCNR may continue
to implement the 1997 Conservation Plan for the Alabama sturgeon, or
any future approved recovery plan. ADCNR is also eligible for funds for
conservation of the sturgeon under our recovery and section 6 programs.
Implementing regulations (50 CFR 17.21(c)(5)) also provide States under
cooperative agreements certain authorities for conducting actions for
the conservation (i.e., recovery) of endangered species.
Listing the Alabama sturgeon under the Act increases penalties for
already prohibited acts. Unauthorized removal of sturgeon from the
waters of Alabama is already prohibited by State law. Cooperation and
assistance from private individuals, such as recreational and
commercial fishermen, can continue under both Federal and State
permitting authority.
Listing of the Alabama sturgeon under the Act does not effect use
of the fiscal year 2000 candidate conservation funds already given to
the State. We have obligated this money to the State of Alabama; they
may use it for the purpose of candidate conservation and it will not be
rescinded.
Issue 36: The Service failed to consider the 1997 Conservation Plan
and its favorable effect on the Alabama sturgeon in its proposal.
Response: We outlined the 1997 Conservation Plan in the proposed
rule under Available Conservation Measures. Implementation efforts
under the plan were also discussed under the Background section of the
proposal. Implementation of the plan tasks, such as construction of
hatchery facilities and collection efforts, is positive and provides
opportunities for future population augmentation. However, the plan has
not yet been successful in decreasing the threat of extinction to where
protection under the Act is no longer warranted.
Issue 37: The proposed listing of the Alabama sturgeon has made it
more difficult for ADCNR to implement the 1997 Conservation Plan
because of permitting requirements, conferencing limitations, and
Service propagation policies.
Response: Proposed endangered status has not affected
implementation of the 1997 Conservation Plan. We have no permitting
requirements for proposed species; we will expedite permitting
procedures once this final rule is published. The section 7
conferencing requirements were met with the White Paper (Biggins 1994)
and subsequent correspondence between the Corps and us. We published a
Draft Policy Regarding Controlled Propagation of Species Listed Under
the Endangered Species Act on February 7, 1996 (61 FR 4716). We will
work with the State to ensure that the Alabama sturgeon propagation
program is in compliance with the policy, once we publish the policy in
final form. Collection efforts have continued, and two fish have been
caught since the listing proposal was published. The State conducted an
unsuccessful attempt to propagate the sturgeon following publication of
the proposal.
Issue 38: Candidate conservation funds appropriated for the FY 2000
budget cannot be used for sturgeon conservation, should the Alabama
sturgeon be listed.
Response: Funds appropriated for Alabama sturgeon conservation in
the FY 2000 budget were committed to Alabama sturgeon conservation
efforts while the sturgeon was a proposed species. (Refer to Issue 35
for further information.)
Issue 39: Listing will transfer responsibility for managing the
Alabama sturgeon from the State to the Service, and work on the 1997
Conservation Plan will stop for at least a year until a recovery plan
is developed and approved.
Response: Our policy is to develop recovery plans for listed
species within two and a half years of their designation as endangered
or threatened species. Approved recovery plans, however, are not
necessary to conduct recovery actions for listed species. Under the
section 6 agreement between the State and us, the ADCNR may continue
conservation efforts without delay.
Issue 40: The U.S. Coast Guard has stated that listing the Alabama
sturgeon would seriously limit, if not hamper, the dredging of all
navigable waterways in the historic Mobile River Basin.
Response: The U.S. Coast Guard comments were based on a premise
that listing the sturgeon would stop navigation maintenance. They were
unaware of an impact assessment on navigation maintenance conducted and
agreed to by both us and the Mobile District Corps of Engineers that
concluded that navigation dredging would not need to be eliminated,
modified, or altered should the Alabama sturgeon be listed. They have
since been provided with this information.
Issue 41: The White Paper is an informal agreement that must be
endorsed at the national level to be believable. The Service should
include the White Paper in its entirety in the final rule to list the
Alabama sturgeon.
Response: The White Paper (Biggins 1994) is not an agreement, but a
1994 assessment of impact of a Federal agency's activities on a
proposed species. This assessment found no adverse effect to the
Alabama sturgeon from current Corps activities and permitting
activities in the lower Alabama River. The no-adverse-effect
determination was formalized by an exchange of letters between the two
agencies that same year. In 1998 and 1999, both agencies reaffirmed
this conclusion following studies that supported the determination.
Federal agency activity impact assessments on listed species, required
by the Act, are conducted at the field level. Should disagreements
occur, they may be elevated to the Regional and District level.
Although there was no disagreement between agencies concerning the no-
adverse-effect determination on the Alabama sturgeon, letters
reaffirming the determination were exchanged between the Service's
Regional Director and the Corp's Division Commander because of
continued public concern. There is no disagreement between the agencies
at the field, Regional, or District levels; therefore, there is no need
to elevate this assessment to the national level.
Much of the assessment and conclusions of the White Paper, as well
as of the more recent correspondence, was incorporated into the
proposed rule under Factor A, and the White Paper (Biggins 1994) was
cited for reference. The White Paper and all subsequent correspondence
relating to the White Paper and Federal activities within Alabama
sturgeon habitat are currently a part of the administrative record to
list the sturgeon under the Act. Publishing the White Paper and
pertinent correspondence would not add to, or detract from, the
protection of the Alabama sturgeon under the Act, or affect or change
any Federal agency's

[[Page 26449]]

responsibility under the Act. We have, however, included the White
Paper at the end of this rule and expanded and clarified the discussion
of it and its findings in this final rule.
Issue 42: In the 1994 White Paper, the Service and the Corps
concluded that listing the sturgeon would have no impact on State water
quality standards. However, EPA has agreed in a Memorandum of Agreement
Regarding Enhanced Coordination under the Clean Water Act and
Endangered Species Act (MOA) between EPA and us to consider the effects
of their programs and activities on listed species. Under the
Agreement, EPA agreed that modified regulations will prohibit mixing
zones likely to cause jeopardy to listed species. Therefore, listing
the Alabama sturgeon may require changes in State water quality
standards throughout its historic range.
Response: Under Factor A, we note that pollution may have
contributed to the decline of the Alabama sturgeon in the past.
However, at this time, we have no information that current water
quality regulations are not protective of the Alabama sturgeon.
The MOA between the Service and EPA is to ensure appropriate
implementation of both the Clean Water Act and the Endangered Species
Act. The MOA does not change, or add to, the legal responsibilities of
either agency under either Act. Currently, there are 62 listed species
in Alabama that are subject to consultation on water quality standards
under the MOA.
Under the Endangered Species Act, Federal agencies, including EPA,
are obligated to consider the effects of their actions, including
permitting actions, on endangered and threatened species, and to avoid
jeopardizing the continued existence of the species. Only actions
impacting the species need to be considered. The Alabama sturgeon is
believed to be extirpated from approximately 85 percent of its historic
range in the Mobile River Basin. Based on current knowledge of the
species, only Federal actions affecting the lower 216 km (134 mi) of
the Alabama River need to be assessed for impacts on the Alabama
sturgeon. We are unaware of any permitted discharge within this river
reach, or anywhere else, that is likely to jeopardize the continued
existence of the Alabama sturgeon.
Issue 43: EPA recently proposed additions to Alabama's 303(d) list,
based in part, on the presence of federally listed species in streams.
A substantial portion of the Mobile River Basin could become subject to
303(d) designation based solely on the habitat/historic range of the
Alabama sturgeon.
Response: Streams proposed by EPA for addition to Alabama's 303(d)
list, due to listed aquatic species, have to meet certain criteria.
These include a documented decline or extirpation of the listed species
since 1975, and an identified pollutant that contributes to that
decline (such as sediment or nutrients). These criteria limit the
303(d) proposals to a few stream segments with demonstrated problems,
affecting only a small number of the streams that support listed
species in Alabama. Currently, no pollutants have been implicated in
the decline or extirpation of the Alabama sturgeon from any stream
segment since 1975. The listing proposal pointed out that two localized
river segments above Claiborne Lock and Dam have been reported as
occasionally impaired due to nutrients and organic enrichment; however,
this is not considered a significant impact on the Alabama sturgeon. We
do not anticipate requesting EPA to consider adding streams or stream
segments to the State 303(d) list based on the past or present
occurrence of the Alabama sturgeon.
Issue 44: Any violation of a discharge permit into waters
supporting Alabama sturgeon could potentially result in take of the
species under the Act. Since critical habitat was not proposed for the
sturgeon, any violation of a National Pollutant Discharge Elimination
System (NPDES) discharge permit within the sturgeon's historic habitat
in the Mobile River Basin would be subject to civil and criminal
penalties under the Act.
Response: Since 1994, it has been our policy to notify the public
of activities that could potentially result in a violation of the Act
in proposed regulations to list species. In the proposed rule, we
identified discharge permit and water withdrawal permit violations as
having the potential to result in a take of Alabama sturgeon. We have
received many comments expressing concern that common, minor violations
of NPDES discharge permits throughout the historic range of the
sturgeon will be prosecuted as take of Alabama sturgeon. This is not
our intent. Only violations that result in injury or death to the
listed species would be prosecutable under the Act. However, since
illegal discharge of pollutants is also identified as a potential take,
we have removed the section on permit violations from the referenced
discussion in this final rule. Permit violations that result in death
or injury to Alabama sturgeon or any other federally listed species,
however, could be considered take.
Issue 45: Listing the Alabama sturgeon would have an adverse impact
on hydropower operations below Robert F. Henry and Millers Ferry
Hydroelectric Projects, and may potentially impact operation of the
Allatoona and Carters Hydroelectric Projects. There is also concern
that the Service could make unsubstantiated claims of harm as a result
of future changes in flow regimes in the lower Alabama River.
Response: The proposed rule noted that flow regimes below Millers
Ferry Lock and Dam may have a negative effect on Alabama sturgeon
reproduction and recruitment, based on studied responses of other
sturgeon species to flow modifications within their habitats. However,
we also noted that it is not currently known if this area is important
to, or even used for, Alabama sturgeon reproduction. Therefore, we see
no reason for recommending any modification of flow regime below
Millers Ferry Lock and Dam at this time. Should future research
determine that this area is important for sturgeon reproduction, and/or
flow regimes were having a negative effect on sturgeon, we and the
Corps would examine options available under section 7 consultation.
Options might include working with the Corps and hydroelectric operator
to provide more favorable flows for the sturgeon, and/or providing for
any incidental take of sturgeon resulting from activities of the Corps
and hydroelectric operator via an incidental take statement as part of
a biological opinion.
Future proposed changes in flow regimes in the lower Alabama River
should thoroughly consider potential impacts to the Alabama sturgeon,
as well as other species. Continued research into the life history and
habitat of Alabama sturgeon can provide a sound basis for future
decisions regarding potential changes in flow regimes in the lower
Alabama River.
The Alabama sturgeon is no longer believed to occur in the Millers
Ferry Pool below Robert F. Henry Lock and Dam. The Allatoona and
Carters hydroelectric projects in Georgia occur outside of, and are
remote from, Alabama sturgeon's historic and currently occupied
habitat. These projects are unlikely to affect the Alabama sturgeon, or
be affected by its protection under the Act.
Issue 46: A recent economic impact analysis of the proposed
listing, developed by economists at Troy State University, determined
that a more than $15 billion adverse economic impact will result from
listing the Alabama sturgeon as endangered. There should be a cost/
benefit analysis conducted

[[Page 26450]]

prior to listing the Alabama sturgeon under the Act.
Response: Section 4(b)(1)(A) of the Act requires us to base our
decision on whether to list a species solely on the best scientific and
commercial data available on the species' status and precludes us from
considering economic or other impacts that might result from the
listing. Public comments directed to economic or other potential
impacts of listing are outside the scope of this rulemaking.
Section 4(b)(2) of the Act does require us to consider economic or
other impacts associated with the designation of critical habitat.
However, we believe that the referenced economic impact analysis cited
above was based upon a set of incorrect assumptions about how the
proposed listing would affect economic activity throughout the Mobile
River Basin. The referenced analysis made no attempt to identify or
quantify any past or present economic impact associated with 38 aquatic
species currently listed throughout the Basin. For example, there are
listed species associated with all of the navigation channels of the
Mobile River Basin, yet no negative economic impact on navigation,
ports, or marinas due to the presence of these species was documented
in the economic analysis. The analysis assumes, however, without
justification or examples, that all waterways within the Mobile River
Basin will be closed to navigation by the designation of endangered
status to the Alabama sturgeon, and estimates economic consequences
that might result from a halt in all navigation in the Tennessee-
Tombigbee, Tombigbee, Black Warrior, Mobile, and Alabama River
channels, and the closing of ports and marinas. The Alabama sturgeon
currently inhabits only the lower Alabama River. The Corps and the
Service have determined that navigation maintenance has no adverse
effect on the Alabama sturgeon. The proposed rule specifically stated
that maintenance dredging is unlikely to result in a take of Alabama
sturgeon. Therefore, navigation, ports, and marinas will be
economically unaffected by this listing.
The economic analysis also assumed that water withdrawals and
discharges within the Alabama, Coosa, Tallapoosa, Cahaba, Tombigbee,
Black Warrior, and Mobile Rivers and their tributaries would be capped
at present levels should the sturgeon be listed. As noted above, the
Alabama sturgeon currently inhabits only the lower Alabama River. Water
withdrawal has not been identified as a threat to the Alabama sturgeon.
In addition, all of the rivers assumed to be impacted by the analysis,
and many of their tributaries, currently support populations of
endangered and threatened species that have been listed for many years,
and yet the analysis documented no negative economic impact from water
withdrawal and discharge capping due to the presence of these listed
species.
Issue 47: Listing the Alabama sturgeon may restrict the repair and/
or construction of new and existing roads and bridges on the lower
Alabama River.
Response: Section 7 of the Act requires Federal agencies, in
consultation with us, to determine if their actions are likely to
jeopardize the continued existence of listed species or adversely
modify or destroy their critical habitat, and to conduct their
activities in ways that are protective of listed species. This includes
activities conducted or permitted by Federal agencies, such as road and
bridge repair and construction. There are currently 38 listed aquatic
species in the Mobile River Basin, including four currently inhabiting
the Alabama River. As a result, consultations are a common occurrence
in the Mobile River Basin, normally proceeding without attention of or
impact to the general public. Based on our knowledge of conditions in
the lower Alabama River, the life history and habitat of the Alabama
sturgeon, and the localized and temporary nature of impacts associated
with road and bridge construction, we do not foresee any restrictions
necessary on bridge and road construction or repair resulting from
addition of the Alabama sturgeon to the list of species protected under
the Act.
Issue 48: Listing the Alabama sturgeon under the Act will result in
third party lawsuits to stop Federal projects (such as maintenance
dredging) or stop the issuance of discharge permits.
Response: Citizen suits are allowed under the Act. However, it has
been our experience that fully complying with the requirements of the
Act, as well as other Federal laws, is the best way to avoid citizen
suits.
Issue 49: The Act clearly states that to the maximum extent prudent
and determinable, critical habitat shall be designated concurrently
with listing a species. By not proposing critical habitat concurrent
with the listing, the proposal is in violation of the Act.
Response: Implementing regulations allow us to determine that
critical habitat designation is not prudent if such designation would
result in an increase in threat to the species, or if designation does
not benefit the species. In the proposal, we determined that because of
the limited range of the species, critical habitat would provide no
additional benefit for the species beyond that which it would receive
from listing. In addition, we were concerned that an adverse public
reaction to critical habitat designation would result in loss of
cooperation by fishermen and other partners in current conservation
efforts. Therefore, in the proposed rule we concluded that designation
of critical habitat for the Alabama sturgeon was not prudent.
During the public comment period, we received numerous comments
from both proponents and opponents of the species listing that favored
designation of critical habitat. Due to this public response, we now
believe that it is unlikely than any adverse effect on the sturgeon
would occur as a result of critical habitat designation, and that such
designation is indeed prudent, but not determinable at this time.
Section 4(b)(6)(C) of the Act provides that a concurrent critical
habitat determination is not required with a final regulation
implementing endangered status and that the final designation may be
postponed for one additional year beyond the period specified in
section 4(b)(6)(A), if (I) a prompt determination of endangered or
threatened status is essential to the conservation of the species, or
(ii) critical habitat is not then determinable (see Critical Habitat
section).
Issue 50: The Service did not provide actual notice of the proposed
regulation to list the Alabama sturgeon to ADCNR, or to each of the
three Alabama counties in which the sturgeon currently exists, as the
Act requires.
Response: We provided advance notification, by facsimile, to the
Governor of Alabama, the ADCNR, and the County Commissions of Wilcox,
Clarke, Monroe, and Baldwin Counties, as well as other parties, of the
proposal the day before its publication in the Federal Register. Upon
publication of the proposal, we mailed them copies of the complete text
as published in the Federal Register and solicited their comments. We
have fully complied with the notification requirements of the Act.
Issue 51: The Service's proposed listing is based on the historic
range of the Alabama sturgeon; therefore, the Service may be required
to give actual notice to almost every county in Alabama and several
counties in Mississippi.
Response: We are required to give notice and invite the comments of
each county in which the species proposed for listing is believed to
occur (see 50 CFR 424.16(c)(1)(ii) and 16 U.S.C. 1533(b)(5)(A)(ii)).
The sturgeon is

[[Page 26451]]

extirpated from about 85 percent of its historic range in Alabama and
Mississippi. It is currently believed to inhabit the Alabama River in
Clarke, Monroe, and Wilcox Counties. We gave these counties notice of
the proposed regulation and solicited their comments.
Issue 52: The Service must comply with the National Environmental
Policy Act (NEPA) when designating critical habitat.
Response: Environmental assessments and environmental impact
statements, as defined under NEPA, are not required for regulations
enacted under section 4(a) of the Act (see 48 FR 49244). Please refer
to the NEPA section of this final rule.
Issue 53: In submitting the proposed rule to scientific specialists
for review, the Service must comply with the Federal Advisory Committee
Act (FACA).
Response: FACA applies to committees established by Federal
agencies to provide recommendations and advice to an agency. We
provided copies of the proposed rule to five scientific specialists for
independent review during the open comment period. We received
individual comments from four of these reviewers during the open
comment period. The fifth scientist provided comments through the
Alabama-Tombigbee Rivers Coalition during the open comment period. Our
request and receipt of comments from individual peer reviewers during
the open comment period is fully consistent with FACA requirements.
Issue 54: The Service must comply with Executive Order 12866 and
prepare a Regulatory Plan.
Response: Because section 4(b)(1)(A) of the Act specifically
prohibits consideration of information other than scientific and
commercial information, we are prohibited from applying the procedures
of Executive Order 12866 to proposed and final listings.
Issue 55: The Service must prepare a regulatory flexibility
analysis.
Response: In accordance with the requirements of section 4(b)(1)(A)
of the Act mentioned under Issue 54 above, the Regulatory Flexibility
Act does not apply to listing actions.
Issue 56: The Alabama strugeon is protected by the State and there
is a State-managed 1997 Conservation Plan in place. Listing the Alabama
sturgeon will provide no added benefits to the current conservation
efforts. There is no need for Federal protection of this species.
Response: We acknowledge that the State of Alabama protects the
Alabama sturgeon from scientific and recreational take, and has
implemented conservation efforts for the species. To date, the 1997
Conservation Plan has not been successful at improving the status of
the species such that it no longer requires protection under the Act.
Section 4(a)(1) of the Act requires us to determine whether any species
is an endangered species or a threatened species because of any of five
factors. Listing the Alabama sturgeon will not detract from the efforts
of the 1997 Conservation Plan. The Act requires us to cooperate with
State agencies in conserving endangered species, and we will continue
to cooperate with the ADCNR in conserving the Alabama sturgeon. Listing
will also augment protection and conservation of the Alabama sturgeon.
The Act requires Federal agencies to use their authorities to conserve
listed species. Without protection under the Act, there is no legal
requirement to specifically consider the effects of new Federal
projects funded, carried out, or permitted within the Alabama
sturgeon's habitat. Since many of the activities associated with the
Alabama River channel habitat used by the sturgeon are funded, carried
out, or permitted by Federal agencies, the Federal agency conservation
responsibilities invoked by the Act will benefit the species. This does
not mean that activities of Federal agencies or permittees will be
impeded, rather that projects will be planned and implemented in ways
that reduce harm or injury to the species, and avoid jeopardizing its
continued existence.
Issue 57: It is not clear that listing the Alabama sturgeon will
result in its recovery.
Response: The Act allows us to only consider information related to
a species' status when determining as to whether protection is
warranted under the Act. Therefore, we may not consider the feasibility
of recovery in determining whether to list a species.
Issue 58: Listing the Alabama sturgeon under the Act may create
restrictions on numerous permit actions.
Response: Federal agencies are required under the Act to consider
the effects of their actions, including issuing permits, on endangered
and threatened species. In cases where the action affects the species,
the agency is required to consult with us. If during consultation, the
action is determined to likely jeopardize the species' continued
existence, it may be significantly modified, or even prohibited.
However, this is rarely the case. In over 1,000 consultations in
Alabama over the past decade, only two consultations resulted in a
jeopardy determination, and in both of these cases, the programs were
modified and went forward. In most cases, projects that may affect
listed species have been slightly modified to reduce or eliminate the
effect, and/or the resulting biological opinion anticipates some level
of take of the species, which is exempted from section 9 prohibitions.
In addition, we and the Corps have already determined that most Corps
permitting activities in the lower Alabama River currently are not
known to adversely affect the Alabama sturgeon. Therefore, it is
unlikely that listing the sturgeon under the Act will create
restrictions on numerous permit actions.

Fain et al. (2000) Report

During the open comment period for the Fain et al. (2000) report on
river sturgeon genetics, we received six comments and one peer-reviewed
manuscript. One commenter felt that the use of mtDNA for forensics
purposes should be thoroughly peer-reviewed for all sturgeon species.
Two commenters believed that the report established that the Alabama
sturgeon should not be considered a distinct species. Three commenters
noted that the report establishes only that the cytochrome-b gene is
not useful for examining genetic variation within the genus
Scaphirhynchus and two other sturgeon species groups. The peer-reviewed
manuscript we received during the comment period concluded that current
mtDNA data provide a potentially diagnostic genetic character
supporting taxonomic recognition of the Alabama sturgeon as a distinct
species. Below are issues raised in these comments relating to this
action and our responses to each.
Issue 59: Alabama and shovelnose sturgeons are genetically
identical.
Response: A study by Schill and Walker (1994), discussed in the
background section of the proposed rule, found no sequence divergence
in a cytochrome b mtDNA sequence between a single specimen of the
Alabama sturgeon and shovelnose sturgeon. All subsequent genetic
studies with larger samples of Alabama and shovelnose sturgeons have
revealed genetic differences between samples of the two species.
Cytochrome b mtDNA sequences reported by Fain et al. (2000) indicate
that the Alabama sturgeon sample had only one sequence type, A, whereas
the shovelnose sturgeon sample included two sequence types, B and C,
that were not found in the Alabama sturgeon sample. Although sequence A
was found in both, it differed in frequency in Alabama (frequency =
1.0) and shovelnose (frequency = 0.86) sturgeons. Fain et al. (2000)
concluded that these differences were not

[[Page 26452]]

diagnostic for forensic purposes. Campton et al. (in press) report a
unique mtDNA sequence at the mtDNA control region found in all three
Alabama sturgeons sampled, but was not found in any of a sample of 37
shovelnose sturgeon and putative shovelnose/pallid sturgeon hybrids.
This potentially diagnostic genetic marker differed from the most
similar shovelnose and pallid sturgeon sequences by a unique base-pair
substitution. These results were confirmed by those of Mayden et al.
(1999), which are discussed in our response to Issue 24. Nuclear DNA
divergence detected between Alabama sturgeons and other Scaphirhynchus
reported by Genetic Analyses, Inc., (1994, 1995) is discussed in our
responses to Issues 20 and 22 and in the Background section of this
rule.
Issue 60: Genetics is the best science for making taxonomic
determinations and trumps morphological analyses.
Response: The most scientifically credible approach to making
taxonomic determinations is to consider all available data involving as
many different classes of characters as possible. Classes of characters
that can be considered include morphological, karyological
(chromosomal), biochemical (including DNA analysis and other molecular
genetic techniques), physiological, behavioral, ecological, and
biogeographic characters (Wiley 1981). The consideration given to any
given class of characters in making a taxonomic decision depends on
several factors. These include the availability and quality of the
data, the appropriateness of the method and design of the study to the
taxonomic issue in question, and the demonstrated utility of the method
to similar issues or taxonomic groups. Genetic data have their greatest
utility in making species-level taxonomic determinations when the
putative species are sympatric (occur together) and the degree of
natural genetic interaction can be evaluated. When the putative species
are allopatric, as with Alabama and shovelnose sturgeons, genetic data
provide a measure of divergence that must be evaluated along with all
other available measures of divergence in making a determination
whether species-level differences exist. When sample sizes are small,
either in terms of number of individuals or number of genetic regions
or loci tested, the taxonomic value of genetic data is diminished.
Issue 61: Based on the study by Fain et al. (2000), Alabama and
shovelnose sturgeons are the same species (conspecific).
Response: The study of Fain et al. (2000) was designed to develop a
procedure for the forensic identification of caviar; it was not
designed to critically examine the taxonomy of sturgeons of the genus
Scaphirhynchus. Their choice of a portion of the cytochrome b sequence
is reasonable for their purpose of evaluating a number of different
genera distributed over a wide geographic range across different
continents. Failure to find a diagnostic marker for Alabama sturgeon in
a gene region chosen to have a somewhat conservative rate of divergence
does not mean that it is not a species or that genetic differences were
not found; genetic differences are discussed in our response to Issue
59. Fain et al. (2000) observe that when minimal genetic variation is
found with such a technique, it can mean that the species have recently
diverged and there has not been time for fixation of genetic
differences. That species formation can take place more rapidly than
differentiation of genetic markers can become established has long been
appreciated by systematists and taxonomists applying genetic data
(Avise 1994). Cytochrome b is not the best choice of a genetic region
for resolving the closely related species in the genus Scaphirhynchus.
In such cases it is appropriate to examine a gene region known to have
a faster rate of evolution that might be reflected in a difference
between species. The study of Campton et al. (in press) employed the
more rapidly evolving control region of mtDNA with the results
described under Issue 59. Campton et al. (in press) also discuss other
cases where speciation has occurred in fishes with very little genetic
divergence in cytochrome b, and Fain et al. (2000) identifies lack of
divergence between pairs of other sturgeon species. Interpreted in
light of the minimal gene regions studied, the small sample sizes of
Alabama sturgeon, and evidence from other species that species
formation can occur with minimal detectable genetic differentiation in
DNA regions commonly studied, the genetic data are consistent with and
do not demand the rejection of taxonomic conclusions based on
morphological and biogeographical data that the Alabama sturgeon
qualifies for recognition as a valid species.

Conservation Agreement Strategy

During the open comment period for the Conservation Agreement
Strategy, we received 259 letters recommending implementation of the
Strategy and withdrawal of the listing action. We also received five
letters opposing the use of the Strategy to preclude listing. Below are
issues raised in these comments relating to this action and our
responses to each.
Issue 62: The Conservation Agreement Strategy fully addresses the
threats identified in the proposed listing rule. Therefore, it provides
the basis for either withdrawing the listing action for the Alabama
sturgeon, or listing as threatened instead of endangered.
Response: Conservation actions for the Alabama sturgeon have been
conducted over the past years by the State of Alabama, other concerned
parties and us under a Conservation Plan. These actions have been
successful to the extent of increasing our knowledge of methods to
capture the fish and maintain it in captivity. However, the species
remains vulnerable to extinction because of its small population size
and restricted range. Early this year we were requested by the State of
Alabama to develop and enter into a formal Conservation Agreement and
Strategy with the State and others to continue and to increase
conservation efforts for the Alabama sturgeon. We collectively
developed a conservation strategy that is technologically and
economically feasible and that has a good chance of addressing the
threats to the continued existence of the Alabama sturgeon. We also
released the Conservation Agreement Strategy for public review and
comment. We then reviewed the comments received, and considered the
certainty and effectiveness of the Conservation Agreement Strategy as
it relates to the current and future status of the sturgeon.
We concluded that the Conservation Agreement Strategy is the best
approach for conservation of the Alabama sturgeon; however, the
certainty and effectiveness of these efforts in removing existing
threats remain unproven and dependent upon many factors beyond human
control. For example, the Strategy can only be effective if sufficient
mature fish of both sexes can be captured. In the past 4 years we have
only captured five fish, of which only one was in reproductive
condition. While the Strategy calls for a dramatic increase in capture
efforts over the next decade, the capture of sufficient fish in
appropriate condition cannot be assured.
Collection history and anecdotal accounts from commercial fishermen
indicate that the numbers of Alabama sturgeon have been declining since
the construction of dams in the Alabama River during the 1960's and
early 1970's. It is currently unknown if this decline is an effect of
low population

[[Page 26453]]

numbers and the subsequent inability of the fish to reproduce
successfully, or a result of inadequate habitat quantity, or a
combination of factors.
Although the successful implementation of the Conservation
Agreement Strategy will maintain current habitat quantity and quality
and provide information on the habitat needs of the Alabama sturgeon,
we cannot currently predict what effect that information may have on
the future status of the species. Therefore, based on our analysis, the
Conservation Agreement Strategy does not remove existing threats to the
Alabama sturgeon to a degree to where it no longer warrants listing
under the Act. The Conservation Agreement Strategy, however, does
provide the best available actions for the conservation of the Alabama
sturgeon, and may lead to its eventual recovery. The Strategy has
outlined what the species needs for recovery, and it will make an
excellent recovery plan.
Issue 63: The Conservation Agreement Strategy fails to address the
factors sufficiently to have an effect on the listing determination of
the Alabama sturgeon.
Response: We concur that the Strategy does not remove threats to
the Alabama sturgeon to a degree that precludes its need for protection
under the Act. However, the Conservation Agreement Strategy can
influence many future actions covered under sections 4, 6, and 7 of the
Act. For example, the Strategy provides the basis for an Alabama
sturgeon recovery plan, identifying current and future recovery actions
essential to the species' conservation. The Conservation Agreement
Strategy could become the State's program to conserve the sturgeon
under section 6 of the Act. In addition, the Corps' involvement,
commitments, and actions under the Conservation Agreement Strategy
would, in large part, fulfill their conservation obligations under
section 7(a)(1) of the Act. Positive results of the Conservation
Agreement Strategy could facilitate future section 7(a)(2)
consultations.
Issue 64: The Department of the Interior had already made a
decision regarding the listing of the Alabama sturgeon when the comment
period opened in February.
Response: As stated in the February 16, 2000, Federal Register
notice (65 FR 7817), we reopened the comment period to obtain public
comment on the Conservation Agreement Strategy's relevance and
significance to the upcoming listing decision. We reviewed all comments
received prior to making a determination to list the Alabama sturgeon
as an endangered species.
Issue 65: The Conservation Agreement Strategy failed to allow
public involvement in the development of the conservation goals and
strategies, and did not appear to include consultation with scientific
authorities with expertise in population ecology or dynamics. The
result is an agreement that fails to consider the geographic scale
needed for long term survival of the species.
Response: Much of the Conservation Agreement Strategy is based upon
the 1997 Conservation Plan. This Plan had wide distribution and input,
including that of private and public professional fisheries biologists
and ecologists. Little had changed since development of the 1997
Conservation Plan. The parties used that Plan as a starting point and
developed the Conservation Agreement Strategy. The Conservation
Agreement Strategy was executed by the parties prior to public comment
because the signatories were concerned, in part, about losing prime
spawning time for the Alabama sturgeon if execution was delayed until
after public comment. The parties to the Conservation Agreement
Strategy agreed that an open comment period after execution was
appropriate to provide the public and scientific community the
opportunity for input in the Conservation Agreement Strategy, its
objectives and its associated tasks, and that Strategy 2000 would be
modified as deemed appropriate by the signatories.
Issue 66: The Service did not follow the rules of FACA when
developing the Conservation Agreement Strategy.
Response: The Conservation Agreement Strategy is a joint effort by
the parties to eliminate or significantly reduce current threats to the
Alabama sturgeon. Entering into such agreements with states, other
federal government entities and other interested private parties to
accomplish mutual goals is a routine practice of the Service and other
federal agencies. These are not the type of activities that are subject
to FACA.

Peer Review

In accordance with our July 1, 1994 (59 FR 34270), Interagency
Cooperative Policy on Peer Review, we requested the expert opinions of
independent specialists regarding pertinent scientific or commercial
data and assumptions relating to the supportive biological and
ecological information in the proposed rule. The purpose of such review
is to ensure that the listing decision is based on scientifically sound
data, assumptions, and analyses, including input of appropriate experts
and specialists.
We requested five academicians who possess expertise on Alabama and
shovelnose sturgeon taxonomy and systematics to review the proposed
rule by the close of the comment period. Four of these individuals
responded directly to our request. All expressed their belief that the
data support protection of the Alabama sturgeon under the Act. Three
peer reviewers strongly supported the taxonomic status of the Alabama
sturgeon, and two of these provided supporting information. One
reviewer expressed some personal doubt regarding taxonomic status of
the Alabama sturgeon, but felt the fish represented a subspecies, or at
a minimum, a unique population that needed protection under the Act.
This individual also noted that Mayden and Kuhajda (1996) convincingly
argued for species status.
The fifth reviewer did not directly respond to our request for peer
review; however, he provided comments opposing the proposal at the
public hearing and through an organization opposed to the listing. We
have addressed these comments in the Summary of Comments and
Recommendations section, above.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, we determine that the Alabama sturgeon should be classified
as an endangered species. We followed the procedures found at section
4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations (50 CFR
part 424) issued to implement the listing provisions of the Act. We may
determine a species to be endangered or threatened due to one or more
of the five factors described in section 4(a)(1). These factors and
their application to the Alabama sturgeon (Scaphirhynchus suttkusi
Williams and Clemmer 1991) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The best available data indicate
that the Alabama sturgeon has disappeared from 85 percent of its
historic range. Its decline has been associated with construction of
dams, flow regulation, navigation channel development, other forms of
channel modification, and pollution. Dams in the Alabama River have
reduced the amount of riverine habitat, impeded migration of Alabama
sturgeon for feeding and spawning needs, and changed the river's flow
patterns. The species is now restricted to a 216-km (134-mi) reach of
the Alabama River below Millers Ferry Lock and Dam, downstream to the
mouth of

[[Page 26454]]

the Tombigbee River. Whether the quantity of fluvial (stream) habitat
currently available to the species in this river reach is adequate to
meet all of the ecological needs of a self-sustaining population is
unknown.
Changes in natural river flow regimes by operation of hydroelectric
dams are known to be detrimental to other sturgeon species (e.g.,
Khoroshko 1972, Zakharyan 1972, Veshchev 1982, Veshchev and Novikova
1983, Auer 1996). Flow quantity is believed to be adequate to maintain
sturgeon in the lower Alabama River below Claiborne Lock and Dam
(Biggins 1994). The Alabama Power Company currently releases 57 cubic
meters per second (cms) (2,000 cubic feet per second (cfs)) seasonal
minimum flow from Jordan Dam into the lower Coosa River, and 34 cms
(1,200 cfs) minimum flow from Thurlow Dam into the lower Tallapoosa
River. These two releases provide a combined 91 cms (3,200 cfs) minimum
flow to the upper Alabama River for passage through the three Alabama
River locks and dams. Alabama River flows are further augmented by
generating flows from Jordan, Thurlow, and Bouldin dams, as well as
other Alabama River tributary flows. The average daily flows measured
over the last decade downstream of Claiborne Lock and Dam have ranged
from over 100 cms to nearly 7,000 cms (3,500 to 247,000 cfs). While no
evidence suggests that the Alabama sturgeon is limited by water
quantity below Robert F. Henry and Millers Ferry Locks and Dams, these
dams house hydropower facilities and neither is required to maintain a
minimum flow. Current low flow releases from these two facilities can
be as little as 3 hours of generation timed according to peaking needs,
plus lockage releases. The effect of such daily flow fluctuations below
Millers Ferry Lock and Dam on Alabama sturgeon reproductive, larval, or
juvenile habitat requirements may be negative; however, the importance
of the area between Robert F. Henry and Claiborne lock and dams for
sturgeon reproduction is currently unknown.
The most visible continuing navigation impact within presently
occupied Alabama sturgeon habitat is maintenance dredging of navigation
channels. We have no evidence that such dredging currently constitutes
a limiting factor to the sturgeon (Biggins 1994). The Corps has
constructed 67 channel training works (jetties) at 16 locations in the
lower Alabama River, eliminating about 60 percent of dredging
requirements at those locations. In the Mississippi River drainage,
such channel training works are believed to be used as spawning areas
by other sturgeon species (Mayden and Kuhajda 1996).
Maintenance dredging continues to be necessary in the Alabama River
to remove seasonally accumulated material from deposition areas within
the navigation channel. Dredged materials are usually placed on natural
deposition features adjacent to the navigation channel, such as point
bars or lateral bars. Due to the natural dynamics of river channels and
annual sediment movement, maintenance areas have remained fairly
constant over time, with the same areas repeatedly dredged or used for
disposal. Recent investigations by the Corps, ADCNR, and us indicate
that the distribution of stable benthic (bottom) habitats in the
riverine portions of the Alabama River has been, and continues to be,
strongly influenced by historical dredge and disposal practices.
Changes in disposal practices could disrupt the existing equilibrium.
For example, river channels are strongly influenced by the amount of
sediment moving through them. Increases in sediment budget can cause
aggradation (filling) of the channel, while decreases in sediment can
cause degradation (erosion). With the upstream dams forming barriers to
the movement of sediment through the Alabama River, additional
reduction of sediment availability (e.g., through upland disposal)
could increase river bed and bank erosion, including areas that are now
important, stable habitats. In consideration of this situation,
significant changes in current disposal methods in the Alabama River
could adversely affect the Alabama sturgeon.
Recent investigations by ADCNR biologists and us have documented
the presence of high-quality, stable river bottom habitats interspersed
within and between dredge and disposal sites in the lower Alabama River
(Hartfield and Garner 1998). These habitats included stable sand and
gravel river bottom supporting freshwater mussel beds, and bedrock
walls and bottom. Mussel beds are excellent indicators of riverine
habitat stability because freshwater mussels may live in excess of 30
years, and mussel beds require many decades to develop (Neves 1993).
Clean bedrock has been identified as potential Alabama sturgeon
spawning habitat (Mayden and Kuhajda 1996). The significance of such
areas of stability are suggested by the location of recent and historic
Alabama sturgeon capture sites below Millers Ferry and Claiborne locks
and dams. Dive surveys at 19 capture sites dating back to 1950 found 17
in the vicinity of dense mussel beds (15 sites) and/or clean bedrock
riverine habitat (11 sites) (Hartfield and Garner 1998). Depths at
these areas (5 to 15 m (16 to 49 ft)) are well below the minimum
navigation maintenance depth of 3 m (9 ft).
Sand and gravel mining has had historic impacts on riverine
habitats in the lower Tombigbee and Alabama river channels. Instream
dredging for sand and gravel can result in localized biological and
geomorphic changes similar to those caused by channelization and
navigation channel development. For example, mining of rivers has been
shown to reduce fish and invertebrate biomass and diversity and can
induce geomorphic changes in the river channel both above and below
mined areas (Simons et al. 1982, Brown and Lyttle 1992, Kanehl and
Lyons 1992, Hartfield 1993, Patrick and Dueitt 1996). Sand and gravel
dredging of the Tombigbee and Alabama river channels within the
historic and current range of the Alabama sturgeon has occurred
periodically since the 1930s (Simons et al. 1982). We are not aware of
any currently active sand and gravel dredging operations in the Alabama
River. However, mining of gravel from stable river reaches used by the
Alabama sturgeon would be detrimental to the species.
Water pollution may adversely impact sturgeon (Ruelle and Keenlyne
1993) and was likely a factor in the decline of the Alabama sturgeon,
especially prior to implementation of State and Federal water quality
regulations. Currently, the major sources of water pollution in Alabama
are agriculture, municipal point sources, resource extraction, and
contaminated sediments, in order of decreasing importance based on
numbers of miles impaired (Alabama Department of Environmental
Management 1994). Water quality in the lower Alabama River is generally
good; however, two localized river segments above Claiborne Lock and
Dam have been reported in the past as occasionally impaired due to
excess nutrients and organic enrichment (Alabama Department of
Environmental Management 1994). Sources of impairment were broadly
identified as the combined effects of industrial and municipal
discharges, and runoff from agriculture and silviculture. These river
segments are also affected by hydropower discharges from Millers Ferry
Lock and Dam. In 1994, an impact analysis on Federal activities in the
Alabama River (Biggins 1994) concluded that no information suggests
that current fish and wildlife standards for water quality are not
protective of the Alabama sturgeon and that State water quality
standards would not need

[[Page 26455]]

to be increased should the sturgeon be protected under the Act. No
information developed since 1994 suggests otherwise.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. As discussed in the ``Background'' section of
this final rule, the Alabama sturgeon was commercially harvested around
the turn of the century. Alabama State law (sect. 220-2-.26-4) now
protects the Alabama sturgeon and other sturgeons requiring that * * *
any person who shall catch a sturgeon shall immediately return it to
the waters from whence it came with the least possible harm. As a
result, sturgeon are not currently pursued by commercial or
recreational fishermen. Nonetheless, Alabama sturgeon are occasionally
caught by fishermen in nets or trot lines set for other species. For
example, one of the Alabama sturgeons caught in 1995 was hooked by a
fisherman on a trot line, and the Alabama sturgeon caught in 1996 was
trapped in a hoop net; both of these fish were released. Doubtless,
there have been additional, undocumented incidental captures by
commercial and sport fishermen. However, the surveys and collection
efforts of the past decade have shown such captures to be rare.
C. Disease or predation. The Alabama sturgeon has no known threats
from disease or natural predators. To the extent that disease or
predation occurs, such threats become a more important consideration as
the total population decreases in number.
D. The inadequacy of existing regulatory mechanisms. As we
discussed under factor B, Alabama State law (sect. 220-2-.26-4)
protects the Alabama sturgeon and other sturgeons requiring that * * *
any person who shall catch a sturgeon shall immediately return it to
the waters from whence it came with the least possible harm. As a
result, sturgeon are not currently pursued by commercial or
recreational fishermen. State regulations, however, do not generally
protect the Alabama sturgeon from other threats. Several regulatory
mechanisms currently benefit the Alabama sturgeon and its habitat
(e.g., Clean Water Act and associated State laws, Fish and Wildlife
Coordination Act, Federal Power Act, National Environmental Policy Act,
Rivers and Harbors Act). However, within the scope of other
environmental laws or Alabama State law, there is currently no
requirement to specifically consider the effects of actions on the
Alabama sturgeon and ensure that a project is not likely to jeopardize
its continued existence.
E. Other natural or manmade factors affecting its continued
existence. The primary threat to the immediate survival of the Alabama
sturgeon is its small population size and its apparent inability to
offset mortality rates with current reproduction and/or recruitment
rates. As noted in the Background section, incidents of capture of
Alabama sturgeon have been steadily diminishing for the past two
decades, indicating declining population numbers over this time.
Studies also demonstrate that small populations are inherently highly
vulnerable to extinction (Soule 1987). In such cases, the species
becomes very vulnerable to natural or human-induced events (e.g.,
droughts, floods, competition, variations in prey abundance, toxic
spills), which may further depress recruitment or increase mortality
(Belovsky 1987, Shaffer 1987).
Sturgeon species may be especially vulnerable to small population
size for several reasons. Age at first spawning (ranging from 5 to 7
years for shovelnose sturgeon) is much delayed in comparison to many
other fishes, and female sturgeons may not spawn for intervals of
several years (Wallus et al. 1990). A recent attempt to propagate
Alabama sturgeon at the Marion State Fish Hatchery indicates that males
may not spawn annually as well. Thus, the number of adult males and
females capable of reproducing in a given year is much smaller than the
actual numbers of adult sturgeon present. Also, recruitment success in
fish is subject to considerable natural variability owing to
fluctuations of environmental conditions, and several years can pass
between periods of good recruitment. Sturgeon may compensate for some
of these aspects of their natural history by producing large quantities
of eggs per female. However, successful spawning and production of
large numbers of offspring by a single or a few fish may result in
reduced genetic diversity for the overall population.
Currently, no population estimates exist for the Alabama sturgeon.
Recent collection efforts demonstrate its increasing rarity. For
example, beginning in the spring of 1997 through 1999, up to four crews
of professional fisheries biologists have expended approximately 4,000
man-hours of fishing effort in the lower Alabama River to capture
Alabama sturgeon for use as broodstock. This effort resulted in the
capture of only five Alabama sturgeon, three of which have died in
captivity. An additional incidental catch and release was reported by a
commercial fisherman. Thus, approximately 18 months of fishing by
professional, commercial, and recreational fishermen resulted in the
capture of only six Alabama sturgeon. Compared to the estimated 20,000
Alabama sturgeon reported in the 1898 harvest, the amount of effort
currently required to capture Alabama sturgeon indicates that the
species' population numbers are extremely low. This determination
strongly indicates that the Alabama sturgeon is highly susceptible to
the negative effects of a small population size and this factor,
coupled with the reproduction characteristics of its natural history,
renders the species very vulnerable to extinction.

State Conservation Efforts

Section 4(b)(1)(A) requires us, in making a listing determination,
to take into account efforts being made by the State to protect the
Alabama sturgeon. In 1996, the ADCNR developed a conservation plan for
the Alabama sturgeon that attempted to address the most immediate
threat to the species, its small population size. A variety of public
and private groups, including the Service, Army Corps of Engineers,
Geological Survey of Alabama, Auburn University, the Alabama-Tombigbee
Rivers Coalition, and the Mobile River Basin Coalition have
participated in, and/or endorsed, this plan. The immediate focus of the
plan is to prevent extinction through a captive breeding program and
release of propagated fish. Other objectives of the plan include
genetic conservation, habitat restoration, and determining life history
information essential to effective management of the species. A
freshwater sturgeon conservation plan working group composed of
scientists and resource managers from a variety of Federal and State
agencies, industry, and local universities was formed in September 1996
to establish collection and handling protocols, and to recommend and
participate in research efforts. Implementation of the conservation
plan began in March 1997, with broodstock collection efforts. To date,
five fish have been captured; however, three of these have died. Two
male sturgeon are currently held at the Marion State Fish Hatchery. The
hatchery has been upgraded to accommodate sturgeon propagation. An
unsuccessful attempt to spawn the captive sturgeon was conducted during
March 1999 (see Background section). Coordinated studies are currently
in progress by the ADCNR, Corps, and us to identify and quantify stable
riverine habitat in the Alabama River, and to develop strategies for
its management. Life history and habitat studies in progress include
habitat

[[Page 26456]]

characterization at historic sturgeon collection sites, prey density
studies, and larval sturgeon surveys. To date, the 1997 Conservation
Plan has not been successful in decreasing the threat of extinction to
where protection under the Act is no longer warranted.
On February 9, 2000, the ADCNR, the Corps, the Alabama-Tombigbee
Rivers Coalition, and the Service signed a formal 10-year Conservation
Agreement and Strategy for the Alabama Sturgeon. The goal of the 10-
year Conservation Agreement Strategy is to eliminate or significantly
reduce current threats to the Alabama sturgeon and its habitat.
Attaining the goal of the Conservation Agreement Strategy will require
accomplishment of the following objectives: (1) Restore and maintain
sufficient numbers of Alabama sturgeon in the lower Alabama River to
ensure its long-term survival by increasing the numbers of sturgeon
through hatchery propagation and augmentation; and (2) identify and
protect existing occupied Alabama sturgeon habitat quantity and
quality, develop information on the sturgeon's life history and habitat
needs, and use this information to implement appropriate conservation
measures and adaptive management strategies for the Alabama sturgeon
and its habitat. The objectives will be accomplished through
implementation of the Conservation Agreement Strategy for the Alabama
Sturgeon.
The Conservation Agreement Strategy for the Alabama Sturgeon
describes specific actions and strategies required to expedite
implementation of conservation measures for the Alabama sturgeon to
ensure the long-term viability of the species, and to establish
benchmarks to measure the success of the program. The general
conservation goals are to increase sturgeon numbers to a viable, self-
sustaining level; maintain habitat currently occupied by the sturgeon;
conduct research necessary to understand sturgeon life history and
ecology and use this information to manage the species; identify
occupied habitat within the lower Alabama River that might support
sturgeon with appropriate management; and insure sturgeon accessibility
to essential habitat that is identified through research.
The success of implementation during the life of the Agreement and
Strategy will be measured by annual reviews to address the following:
(1) Successful collection of broodstock; (2) successful hatchery
propagation; (3) initial augmentation of the remaining wild stock of
the species with hatchery-spawned Alabama sturgeon; (4) protection of
existing occupied habitat; (5) extending knowledge of the species'
natural history, life cycle, and ecological needs; and (6) development
and implementation of appropriate adaptive management strategies to
conserve the species.
Implementation of the Conservation Agreement Strategy is the most
viable approach to conservation of the Alabama sturgeon, based on
current technology and information. However, the certainty on the
effectiveness of these efforts in removing existing threats remain
unproven and dependent upon many factors beyond human control.
Therefore, the Alabama sturgeon still warrants protection under the Act
(see responses to Issues 62 to 66).
The Mobile River Basin Aquatic Ecosystem Recovery Coalition, a
partnership comprising diverse business, environmental, private
landowner, and agency interests, has been meeting regularly to
participate in recovery planning for 15 listed aquatic species in the
Basin (U.S. Fish and Wildlife Service 1998). The Coalition promotes
increased stewardship awareness by private landowners throughout the
Basin, and encourages the control of non-point source pollution through
the implementation of Best Management Practices. All aquatic habitats,
including Alabama sturgeon habitat, will benefit from such efforts.
In determining to make this rule final, we have carefully assessed
the best scientific and commercial information available regarding the
past, present, and future threats faced by the Alabama sturgeon, while
taking into account ongoing conservation efforts and commitments by the
State and others. Based on our evaluation, the most appropriate action
is to list the Alabama sturgeon as endangered. The Act defines an
endangered species as one that is in danger of extinction throughout
all or a significant portion of its range. The species is currently
limited in distribution to a small portion of its historic range and is
blocked by dams from recolonizing other portions of that range. Whether
the quantity of habitat currently available to the Alabama sturgeon is
adequate to meet the needs of a self-sustaining population is unknown.
In addition, the Alabama sturgeon is vulnerable to extinction due to
its small population size, aggravated by certain characteristics of its
reproduction. Ongoing conservation efforts to increase sturgeon numbers
have to date met with limited success.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (I) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
consideration or protection; and (ii) 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 Act
is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary designate critical habitat at the time
the species is determined to be endangered or threatened. Section
4(b)(2) of the Act requires us to consider economic and other relevant
impacts of designating a particular area as critical habitat on the
basis of the best scientific data available. The Secretary may exclude
any area from critical habitat if he determines that the benefits of
such exclusion outweigh the benefits of its inclusion, unless to do so
would result in the extinction of the species. Our regulations (50 CFR
424.12(a)(2)) state that critical habitat is not determinable if
information sufficient to perform the required analysis of the impacts
of the designation is lacking or if the biological needs of the species
are not sufficiently well known to permit identification of an area as
critical habitat.
In the proposed rule, we found that critical habitat designation
for the Alabama sturgeon was not prudent because we believed it would
provide no additional benefit beyond that of the listing. We also
indicated that the designation of critical habitat was not prudent
because of our concern that such designation could harm the species as
a result of adverse public reaction and loss of cooperation by
fishermen and other partners in ongoing conservation efforts. However,
during the open comment period, we received numerous comments favoring
critical habitat designation for the Alabama sturgeon. Commercial
fishermen also continued to cooperate in conservation actions during
the open comment period. Due to this response, we no longer believe
that any significant adverse public reaction will result from the
designation of critical habitat for the Alabama sturgeon.
In the absence of a finding that critical habitat would increase
threats to a species, if any benefits would result

[[Page 26457]]

from critical habitat designation, then a prudent finding is warranted.
In the case of the Alabama sturgeon, designation of critical habitat
may provide some benefits. The primary regulatory effect of critical
habitat is the section 7 requirement that Federal agencies refrain from
taking any action that destroys or adversely modifies critical habitat.
While a critical habitat designation for habitat currently occupied by
this species would not be likely to change the section 7 consultation
outcome because an action that destroys or adversely modifies such
critical habitat would also be likely to result in jeopardy to the
species, in some instances, section 7 consultation might be triggered
only if critical habitat is designated. Examples could include
unoccupied habitat or presently occupied habitat that may become
unoccupied in the future. In addition, some educational or
informational benefits may result from designating critical habitat.
Therefore, we now find that critical habitat designation is prudent,
but not determinable, for the Alabama sturgeon.
Section 4(b)(6)(C) of the Act provides that a concurrent critical
habitat determination is not required with a final regulation
implementing endangered status and that the final designation may be
postponed for one additional year beyond the period specified in
section 4(b)(6)(A), if (I) a prompt determination of endangered or
threatened status is essential to the conservation of the species, or
(ii) critical habitat is not then determinable. We believe that a
prompt determination of endangered status for the Alabama sturgeon is
essential to its conservation. Listing the sturgeon will augment
protection for the species, require consideration by Federal agencies
of the effects of their actions on its survival, and allow recovery
planning to proceed, while allowing us additional time to evaluate
critical habitat needs. While we received a number of comments
advocating critical habitat designation, none of these comments
provided information that added to our ability to determine critical
habitat. Additionally, we did not obtain any new information regarding
specific physical and biological features essential for the Alabama
sturgeon during the open comment period or the public hearing. The
biological needs of the Alabama sturgeon are not sufficiently well
known to permit identification of areas as critical habitat.
Insufficient information is available on spawning and juvenile habitat,
instream flow needs, water quality, and other essential habitat
features. Through ongoing studies we are attempting to better ascertain
the biological needs of the Alabama sturgeon and the habitat essential
to those needs. This information is considered essential for
determining critical habitat. Prior to a final designation, maps of
proposed critical habitat, identification of essential features, and an
economic analysis of any incremental regulatory effects (additive to
the species listing) will be released for public review and comment.
Protection of Alabama sturgeon habitat will be provided during the
interim through the recovery process, the section 7 consultation
process, and section 9 prohibitions on take.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with us.
Federal activities that could occur and impact the Alabama sturgeon
include, but are not limited to, the carrying out or the issuance of
permits for reservoir construction, stream alterations, discharges,
wastewater facility development, water withdrawal projects, pesticide
registration, mining, and road and bridge construction. In our
experience, nearly all section 7 consultations have been resolved so
that the species have been protected and the project objectives have
been met.
In addition, section 7(a)(1) of the Act requires all Federal
agencies to review the programs they administer and use these programs
in furtherance of the purposes of the Act. All Federal agencies, in
consultation with us, are to carry out programs for the conservation of
endangered and threatened species listed pursuant to section 4 of the
Act.
The Act and its implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any endangered
wildlife. To possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally is also is illegal. Certain
exceptions apply to our agents and agents of State conservation
agencies.
Our policy, as published in the Federal Register on July 1, 1994
(59 FR 34272), is to identify, to the maximum extent practicable, those
activities that would or would not constitute a violation of section 9
of the Act for this species. The intent of this policy is to increase
public awareness as to the effects of this final listing on future and
ongoing activities within this species' range.
We believe, based on the best available information, that the
following activities are unlikely to result in a violation of section
9:
(1) Discharges into waters supporting the Alabama sturgeon,
provided these activities are carried out in accordance with existing
regulations and permit requirements (e.g., activities subject to
section 404 of the Clean Water Act and discharges regulated under the
NPDES);
(2) Continuation of ongoing maintenance dredging of unconsolidated
sediments undertaken or approved by the Corps of Engineers;
(3) Development and construction activities designed and
implemented in accordance with State and local water quality
regulations and implemented using approved Best Management Practices;
(4) Lawful commercial and sport fishing for species other than
Alabama sturgeon, provided any Alabama sturgeon caught are immediately
released unharmed; and
(5) Actions that may affect the Alabama sturgeon and are
authorized,

[[Page 26458]]

funded, or carried out by a Federal agency when the action is conducted
in accordance with an incidental take statement issued by us pursuant
to section 7 of the Act.
Activities that we believe could potentially result in take of the
Alabama sturgeon include:
(1) Illegal collection of the Alabama sturgeon;
(2) Unlawful destruction or alteration of the Alabama sturgeon's
habitat (e.g., un-permitted instream dredging, channelization,
discharge of fill material); and
(3) Illegal discharge or dumping of toxic chemicals or other
pollutants into waters supporting the Alabama sturgeon.
Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may
be likely to result from such activity. We do not consider these lists
to be exhaustive and provide them as information to the public.
You should direct questions regarding whether specific activities
will constitute a violation of section 9 to the Field Supervisor, U.S.
Fish and Wildlife Service, P.O. Box 1190, Daphne, AL 36526 (telephone
334/441-5181), or to the Field Supervisor of the Service's Mississippi
Field Office (see ADDRESSES section).
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are codified at 50 CFR 17.22. You may
obtain permits for scientific purposes, to enhance the propagation or
survival of the species, and/or for incidental take in connection with
otherwise lawful activities. Send requests for copies of regulations
regarding listed species and inquiries about prohibitions and permits
to the U.S. Fish and Wildlife Service, Ecological Services Division,
1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (telephone
404/679-7358; facsimile 404/679-7081).

National Environmental Policy Act

We have determined that Environmental Assessments and Environmental
Impact Statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to section 4(a) of the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid control number. For additional
information concerning permit and associated requirements for
endangered species, see 50 CFR 17.22.

References Cited

You may request a complete list of all references cited in this
document, as well as others, from the Mississippi Field Office (see
ADDRESSES section).
Author: The primary author of this document is Paul Hartfield (see
ADDRESSES section) (601/321-1125).

Introduction to the White Paper (Biggins 1994)

Below is a document entitled Federal Activities That May Affect the
Alabama Sturgeon and Anticipated Section 7 Consultations on These
Activities. This document was developed jointly by representatives from
the Corps and the Service in 1994 in response to concerns raised during
public comment periods on the 1993 proposed rule to list the Alabama
sturgeon as an endangered species. The document finalized on November
18, 1994, was referred to in the 1999 proposed rule to list the Alabama
sturgeon as an endangered species and in this final rule as ``Biggins
1994,'' and has become widely known as the White Paper.
The White Paper carefully reviews the anticipated impacts of a
variety of activities in the lower Alabama River to the Alabama
sturgeon. To summarize, the 1994 White Paper found the following: (1)
Based on the information available at the time, the Corps' annual
maintenance dredging program was not likely to adversely affect the
Alabama sturgeon. However, the Corps, in conjunction with the Service,
agreed to pursue research to more fully evaluate impacts of maintenance
dredging activities, particularly with regard to turbidity issues. (2)
While removal of rock shelves may adversely affect the Alabama
sturgeon, concerns can be adequately addressed through routine
consultation between the Corps and the Service, and this consultation
is not likely to result in a jeopardy situation or delays in
activities. (3) While channel training devices could reduce impacts to
the Alabama sturgeon, additional training devices are not required to
avoid jeopardy to the species. (4) The removal of unconsolidated
materials from the river bottom through non-Federal maintenance
dredging activities is not considered a direct threat to the Alabama
sturgeon. (5) Current flow patterns are likely adequate to sustain the
Alabama sturgeon where it is currently known to occur. (6) There is no
need to modify the State's water quality standards to protect the
Alabama sturgeon. (7) Direct or indirect impacts to the Alabama
sturgeon from coalbed methane extraction are not anticipated. (8) In-
stream gravel mining may adversely affect the Alabama sturgeon and
would need to be addressed through consultation. (9) The Alabama
sturgeon would need to be considered under other non-Federal activities
permitted by the Corps; however, delays in activities are not
anticipated.
The findings of the White Paper have been affirmed, reviewed, and
reaffirmed through a variety of correspondence between the Corps and us
over the last 5 years. Immediately following the finalization of the
White Paper, in a letter dated November 23, 1994, the Corps determined
that maintenance dredging and disposal activities had no effect on the
Alabama sturgeon. We supported that determination in a letter dated
November 28, 1994. Between October 1998 and April 1999, we and the
Corps again carefully reviewed the details and findings of the White
Paper (four letters--Service, October 21, 1998; Corps, December 21,
1998; Corps, February 2, 1999; and Service, April 7, 1999). These
letters are all part of the administrative record for this final rule,
and summarily clarify and reaffirm the findings of the White Paper.
The findings of the White Paper relative to the annual maintenance
of the existing navigation channel of the Alabama River were further
supported through an exchange of letters from the Service's Southeast
Regional Director, Sam D. Hamilton (June 24, 1999 and February 1, 2000)
and the Corps' Division Engineer, Brigadier General J. Richard Capka
(November 15, 1999). In these exchanges, Regional Director Hamilton
affirmed that the annual navigation channel maintenance dredging
programs would have no effect on the Alabama sturgeon and would not
need to be eliminated, modified, or altered should the Alabama sturgeon
be listed. Brigadier General Capka concurred with this finding and
requested that the White Paper be published in its entirety with the
final rule. In response to this request, the White Paper follows in its
entirety.

[[Page 26459]]

Finally, this latest exchange of letters between Regional Director
Hamilton and Brigadier General Capka identified the need for a
Memorandum of Agreement between the two agencies to ensure open
communication and formalize a cooperative process for dealing with new
information that may alter the earlier no effect finding. The Service
and Corps are currently drafting this agreement.

The White Paper (Biggins 1994)

Federal Activities That May Affect The Alabama Sturgeon and Anticipated
Section 7 Consultations on These Activities

Annual maintenance dredging by the Corps: Maintenance dredging by
the U.S. Army Corps of Engineers (Corps) to maintain the navigation
channel on the Alabama and lower Tombigbee Rivers annually removes 1.5
to 3.8 million cubic meters (2 to 5 million cubic yards) of
unconsolidated aggregate (e.g., sand, mud, and silt). Dredge material
from the Tombigbee River downstream of Coffeeville, Alabama, is
disposed of at upland sites and within the banks of the river. On the
Alabama River, fewer upland disposal areas have been established, and
the majority of the dredge materials is placed within the shallow
reaches of the river.
Based on limited information on the Alabama sturgeon and studies of
the shovelnose sturgeon, it appears that these fish require currents
over relatively stable substrates for feeding and spawning. They are
generally not associated with those unconsolidated substrates that
settle in slower current areas and must be removed annually to maintain
navigation. Therefore, removal and disposal of unconsolidated materials
is not perceived as a threat to the sturgeon or to its feeding or
spawning habitat.
In the proposed rule, the U.S. Fish and Wildlife Service (Service)
expressed concern that turbidity increases associated with the Corps'
annual maintenance dredging could affect the sturgeon, and the Service
still has some concern regarding this issue. However, based on the fact
that (1) The Alabama and Tombigbee Rivers are currently characterized
as turbid rivers; (2) channel maintenance activities produce only
localized and temporary elevation of turbidity; (3) the extent to which
turbidity impacts the Alabama sturgeon is unknown; and (4) the Corps in
cooperation with the Service has agreed to pursue research (within
three years and based on the availability of funds) regarding the
potential impacts of maintenance dredging activities, including
turbidity, on the shovelnose sturgeon, the Service has concurred with
the Corps' determination that based on current information their annual
maintenance dredging program does not adversely affect the Alabama
sturgeon.
Thus, as it is currently believed that the Corps' annual
maintenance dredging program on the Alabama and lower Tombigbee Rivers
is not likely to affect the Alabama sturgeon, these channel maintenance
activities will not need to be eliminated, modified in timing or
duration, or altered to protect the Alabama sturgeon. Therefore, no
loss of revenue from diminished annual channel maintenance activities
will be associated with the listing of the Alabama sturgeon.
Maintenance dredging by the Corps to remove rock shelves: The
Alabama and Tombigbee Rivers naturally move laterally, and to some
extent, vertically. This natural river channel movement exposes rock
shelves at the outer bends of the river. In order to provide for a
reliable and safe navigation channel, these rock shelves must sometimes
be removed, and similar channel alignment improvements of covered
consolidated material are sometimes necessary on the inside bends.
Although the removal of these obstructions to navigation are usually
infrequent and restricted to isolated areas, this activity may
adversely affect the Alabama sturgeon.
The Corps and the Service have discussed the potential impacts to
the Alabama sturgeon of removing these rock shelves, and both agencies
agree that section 7 consultation will be required prior to the
commencement of any rock shelf removal project within or adjacent to
potential Alabama sturgeon habitat. However, since both agencies agree
that rock shelf removal projects are generally not emergency projects,
there will be a sufficient period of time prior to the next dredging
season for both agencies to consider the timing and habitat
improvements which may be possible by the design and construction of
the remaining shelf after excavation and by selective placement of the
excavated material. Thus, the Service does not anticipate that these
consultations will result in a jeopardy situation or result in delays
in these maintenance dredging activities.
Use of training devices by the Corps: In the proposed rule, the
Service cited studies by the Corps and others that the use of channel-
training devices (e.g., training dikes, jetties, sills, and revetments)
in several rivers in the eastern half of the United states reduced
dredging requirements by over 50 percent. The Corps' own data stated
that structures in the Alabama River were assumed to eliminate about 60
percent of dredging requirements at the specific location where such
structures were designed and constructed in the last phase of training
works on the Alabama River. The present system on the Alabama River
consists of 67 channel training works at 16 locations. The Corps has
subsequently stated that based on the Mobile District's criteria for
the use of training works, these structures are already used to the
maximum extent practicable. However, the Service understands that the
Corps will continue to evaluate their use, will modify existing
structures as necessary, and may construct additional training devices
when justified.
Although the Service believes that training devices could reduce
impacts to the Alabama sturgeon and encourages the Corps to consider
their use in future planning, the Service does not believe that more
training devices are required to avoid jeopardy to the Alabama
sturgeon.
Maintenance dredging for non-Federal activities: The Corps
authorizes maintenance dredging for non-Federal navigation projects.
Although these projects are usually on a much smaller scale that the
Corps' annual maintenance dredging activities, they involve the removal
of unconsolidated aggregate from navigable waters of the United States
and include the discharge of some material back into the waterways.
Thus, maintenance dredging by non-Federal entities comes under the
Corps' authority pursuant to section 10 of the RHA (33 U.S.C. 403) and
section 404 of the CWA (33 U.S.C. 1344).
Maintenance dredging by non-Federal entities for navigation removes
unconsolidated aggregate (e.g., sand, mud, and silt) that washes down
from upstream portions of the river and from tributaries. Based on
limited information on the Alabama sturgeon and studies of the
shovelnose sturgeon, it appears that these fish require currents over
relatively stable substrates for feeding and spawning. They are
generally not associated with the unconsolidated substrates that settle
in slower current areas. Therefore, removal of unconsolidated materials
is not considered as a direct threat to the sturgeon or to its feeding
or spawning habitat.
Prior to the Corps' issuance of a section 404 permit for non-
Federal maintenance dredging, the applicant must receive State water
quality certification from the State of Alabama pursuant to section 401
of the CWA. As the Service does not believe that more restrictive water
quality standards will

[[Page 26460]]

be needed to protect the Alabama sturgeon from this activity, the
likelihood of an applicant receiving a State water quality
certification will not be affected by the listing of the Alabama
sturgeon. Additionally, as addressed above under Annual maintenance
dredging by the Corps, temporary increases in turbidity associated with
maintenance dredging activities are nor currently believed to adversely
affect the Alabama sturgeon; and as dredge material from non-Federal
maintenance dredging projects is traditionally disposed of at upland
sites, potential impacts to the sturgeon are further reduced.
Changes in river flow patterns: A series of dams now control water
flows in much of the Mobile River system. Changes in the natural flow
patterns have probably had both direct and indirect effects on the
Alabama sturgeon and its habitat. In the proposed rule, it was stated
that The Service expects that continuous minimum flows of approximately
3,000 [cfs] will be required [to sustain the Alabama sturgeon] below
both Robert F. Henry and Millers Ferry Locks and Dams on the lower
Alabama River and that * * *minimum flows below Claiborne Lock and Dam
are already maintained at approximately 5,000 cfs to provide for
cooling water intake of downstream industry. Although the Service
concedes that little information on the flow needs of the sturgeon is
available, a minimum figures of 90 cms (3,000 cfs) was arrived at by
Service and other biologists familiar with the Alabama River and its
fish populations.
The Service now has evidence of the continued existence of the
Alabama sturgeon in the free-flowing portion of the Alabama River
downstream of Claiborne Lock and Dam and that the Alabama Power Company
(APC), through an agreement with the Corps, attempts to maintain (for
the purposes of navigation) a minimum average daily flow of
approximately 149 cms (4,640 cfs) over any seven consecutive day period
and a minimum average daily flow of approximately 81 cms (2,667 cfs)
over any three consecutive day period downstream of Claiborne Lock and
Dam. Further, the average daily flows over the last decade downstream
of Claiborne Lock and Dam have ranged from 114 to 6,912 cms (3,800 to
244,000 cfs). Therefore, the Service believes that the minimum average
daily flows, as agreed to by the Corps and the APC, coupled with
historic and Federal Energy Regulatory Commission ordered flow
patterns, are likely adequate to sustain the Alabama sturgeon in this
river reach.
The Service's opinion on flow requirements for river segments
upstream of Claiborne Lock and Dam, as stated in the proposed rule, has
changed somewhat. The Service's position remains that the best
biological judgement at this time is that a minimum average daily flow
of approximately 90 cms (3,000 cfs) from the Robert F. Henry and
Millers Ferry Locks and Dams would be required to maintain a population
of the Alabama sturgeon upstream of Claiborne Lock and Dam. However,
the continued existence of the sturgeon upstream of Claiborne Lock and
Dam has not been substantiated in nearly a decade, although anecdotal
evidence exists.
Therefore, based on our current knowledge of the Alabama sturgeon
and its distribution, no changes in water releases from these
structures or from structures located in the headwaters of the Alabama
River system (e.g., Coosa and Tallapoosa Rivers) are being suggested
for the benefit of the sturgeon nor are they anticipated by the Service
as a result of this listing. Thus, without changes in flow releases
from power-generating dams, there should be no loss of electrical power
revenue resulting from listing the Alabama sturgeon.
State water quality standards: Although it is possible that some
point-source discharges negatively impact the Alabama sturgeon, there
is no evidence to support the conclusion that the State's water quality
standards must be changed if the fish is listed. As discussed in the
proposed rule, the potential exists for point discharges to impact the
Alabama sturgeon, and it is noted that there is an increasing demand
for discharge permits in the Mobile River system. However, there are
two factors that work to minimize any impacts to this fish from point-
source discharges: (1) As the Alabama sturgeon inhabits larger channel
areas, the effects of any point discharge into its habitat would likely
be minimized by dilution and (2) the State of Alabama, with assistance
from and oversight by the EPA, sets water quality standards that are
presumably protective of aquatic life.
It is the Service's position, as stated in the proposed rule, that
as long as current fish and wildlife standards under the CWA are used
to issue discharge permits and the conditions of the permits are
enforced, there is no need to modify the State's water quality
standards to protect the Alabama sturgeon. A violation of State water
quality standards would be a violation of the CWA, and listing the
Alabama sturgeon could potentially increase noncompliance penalties.
However, the listing, based on current information, would not increase
the need for changes in State water quality standards.
Coalbed methane: The extraction of coalbed methane can necessitate
the release of produced water into the environment, and this discharge
was mentioned as a potential threat to the Alabama sturgeon in the
proposed rule. The Corps authorizes produced-water discharge structures
pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C.
403) if the outfall structure is placed into navigable waters of the
United States. The Corps typically authorizes these structures with a
Letter of Permission. Letters of Permission are a type of permit issued
through an abbreviated processing procedure that includes coordination
with Federal (including the Service) and State fish and wildlife
agencies, as required by the Fish and Wildlife Coordination Act, and a
public interest evaluation, but without publishing an individual public
notice. Letters of Permission may be used in those cases subject to
section 10 when, in the opinion of the District Engineer, the proposed
work would be minor, would not have significant individual or
cumulative impacts on environmental values, and should encounter no
appreciable opposition. Additionally, prior to discharge, the applicant
must receive a permit from the State of Alabama under NPDES guidelines.
As the Alabama sturgeon exists far downstream of these permit
activities, the Service does not believe that any modification to
existing discharge structure authorization procedures is needed to
protect the Alabama sturgeon.
The potential coalbed methane wells are far upstream of known
Alabama sturgeon habitat and any discharge must meet State water
quality standards (the Service has stated that the water quality
standards will not have to be modified in order to protect the Alabama
sturgeon). Therefore, the Service does not anticipate any direct or
indirect impacts to the Alabama sturgeon from properly permitted
produced-water discharges.
Gravel mining: In-stream gravel mining involves work in navigable
waters of the United States and includes the discharge of the
noncommercial dredge material back into the waterway. Thus, in-stream
gravel mining comes under the Corps' authority, pursuant to section 10
of the RHA (33 U.S.C. 403) and section 404 of the CWA (33 U.S.C. 1344).
The Service believes that the Alabama sturgeon likely uses relatively
stable substrate for breeding and feeding habitat. Thus, mining of this
stable substrate could threaten the species. However, the Service
believes the

[[Page 26461]]

mining of unconsolidated material or relatively stable material that is
covered by several inches of fine sediment would not be likely to
jeopardize the species' continued existence.
Prior to the issuance of a permit by the Corps for in-stream gravel
mining, the applicant must receive State water quality certification
from the State of Alabama pursuant to section 401 of the CWA. As the
Service does not believe that more restrictive water quality standards
will be needed to protect the Alabama sturgeon from this activity, the
likelihood of an applicant's receiving State water quality
certification will not be affected by the listing of the Alabama
sturgeon. However, as in-stream gravel mining generally produces higher
turbidity levels than are produced by maintenance dredging, the Service
believes that increases in turbidity within Alabama sturgeon habitat
from in-stream gravel mining activities could be considered a ``may
adversely affect situation that the Corps would need to address through
section 7 consultation with the Service. However, the Service does not
anticipate that turbidity produced from gravel-mining of unconsolidated
substrates would likely jeopardize the continued existence of the
Alabama sturgeon.
Other regulatory activities of the Corps: The Corps authorizes
other non-Federal activities (e.g., pipelines, piers, wharfs, and small
boat channels) within waters of the United States within the historic
range of the Alabama sturgeon. These non-Federal activities are
regulated through the Corps' regulatory program and evaluated on a case
by case basis. Although these activities are on a much smaller scale
than most other activities authorized by the Corps, these actions are
more numerous and therefore could present a greater number of
opportunities for the Service to consider impacts to the sturgeon.
Thus, concern has been expressed that if the Alabama sturgeon is listed
permit applicants will be burdened by time delays and by requirements
to conduct sturgeon surveys. The Service recognizes that some of the
non-Federal activities authorized by the Corps (e.g., bridge pier
placement and pipeline crossings) in the Alabama River system could be
delayed by a requirement to conduct endangered species surveys (Alabama
sturgeon plus other listed species). However, it has been the
experience of the Service that most of these non-Federal activities do
not require a survey and further are not delayed because of endangered
species issues.
Prepared: November 18, 1994.
This document [White Paper] was prepared jointly by the Fish and
Wildlife Service and the U.S. Army Corps of Engineers in accordance
with the September 1994 Memorandum of Understanding on Implementation
of the Endangered Species Act.
By: Richard Biggins, U.S. Fish and Wildlife Service, Asheville
Field Office, 330 Ridgefield Court, Asheville, North Carolina 28806
(telephone: 704/665-1195 ext. 228, facsimile: 704/665-2782)

Note: Material contained in this document will be included in
any final Alabama sturgeon rule that might be produced by the
Service.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as follows.

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. Amend Sec. 17.11(h) by adding the following to the List of
Endangered and Threatened Wildlife, in alphabetical order under FISHES:

Sec. 17.11 Endangered and threatened wildlife.

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(h) * * *

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Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
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Fishes:

* * * * * * *
Sturgeon, Alabama............ Scaphirhynchus U.S.A. (AL, MS).... Entire............. E 697 NA NA
suttkusi.

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Dated: April 30, 2000.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 00-11131 Filed 5-2-00; 8:45 am]
BILLING CODE 4310-55-U

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

Endangered and Threatened Wildlife and Plants; Final Rule To List the Alabama Sturgeon as Endangered

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