[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Proposed Rules]
[Page 30361-30374]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my08-29]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R4-ES-2008-0058; 92210-1117-0000-FY08-B4]
RIN 1018-AV51
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
designate critical habitat for the Alabama sturgeon (Scaphirhynchus
suttkusi) under the Endangered Species Act of 1973, as amended (Act).
In total, approximately 524 kilometers (326 miles) of river are
proposed as critical habitat. The proposed critical habitat includes
portions of the Alabama and Cahaba Rivers in Autauga, Baldwin, Bibb,
Clarke, Dallas, Lowndes, Monroe, Perry, and Wilcox Counties, in
Alabama.
DATES: We will accept comments received or postmarked on or before July
28, 2008. We must receive requests for public hearings, in writing, at
the address shown in the ADDRESSES section by July 11, 2008.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2008-0058; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We will post all comments on
http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Public Comments section
below for more information).
FOR FURTHER INFORMATION CONTACT: Jeff Powell, Aquatic Species
Biologist, U.S. Fish and Wildlife Service, Alabama Ecological Services
Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251/441-
5858; facsimile 251/441-6222. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend any final action resulting from this proposal to be as
accurate and effective as possible. Therefore, we request comments or
suggestions on this proposed rule. We particularly seek comments
concerning:
(1) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including whether the benefit of designation would outweigh
threats to the species caused by the designation, such that the
designation of critical habitat is not prudent;
(2) Specific information on:
The amount and distribution of Alabama sturgeon habitat,
flows needed by the species; and amount and distribution of free-
flowing waters within the species' historical or present range,
What areas occupied at the time of listing that contain
features essential to the conservation of the species we should include
in the designation and why, and
What areas not occupied at the time of listing are
essential for the conservation of the species and why;
(3) Land-use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat;
(4) Information regarding the potential impacts of this proposed
designation on the activities we have identified that may adversely
affect critical habitat (see the Application of the ``Adverse
Modification'' Standard section), specifically those that are
associated with the following actions:
Actions that would significantly alter the existing flow
regime to the point at which the habitat could no longer sustain normal
behavior and promote species recovery,
Actions that would significantly alter the morphology and
stability of the river channel,
Actions that would significantly decrease the amount of
currently available free-flowing habitat, and
Actions that would significantly alter water chemistry
beyond what is required in the State of Alabama water quality
standards;
(5) Any foreseeable economic, national-security, or other potential
impacts resulting from the proposed designation, and, in particular,
any impacts on small entities, and the benefits of including or
excluding areas that exhibit these impacts; and
(6) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
consider comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. If you submit a hardcopy comment that includes
personal identifying information, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy comments on http://www.regulations.gov.
Background
In this proposed rule, we intend to discuss only those topics
directly relevant to the distribution of the Alabama sturgeon and the
designation of its critical habitat. For more information on the
species, refer to the final and proposed listing rules published in the
Federal Register on May 5, 2000 (65 FR 26438), and on March 26, 1999
(64 FR 14676), respectively.
Sturgeon is the common name used for large, bony-plated, primitive
fishes in the family Acipenseridae which typically grow slowly and
mature late in life. The Alabama sturgeon (Scaphirhynchus suttkusi) is
the smallest of all the North American sturgeons, typically weighing
only 1 to 2 kilograms (2 to 4 pounds) at maturity. The head is broad
and flattened shovel-like at the snout, with a tubular and protrusive
mouth. As with all sturgeon species, there are four barbels (whisker-
like appendages) located on the bottom of the snout in front of the
mouth that are used to locate prey. The body is lined with five rows of
bony plates called scutes. Bony plates also cover the head, back, and
sides, and the body narrows abruptly to the rear forming a
[[Page 30362]]
narrow stalk between the body and tail. The upper lobe of the tail fin
is elongated and ends in a long filament. Coloration of the upper body
is light tan to golden yellow, with a creamy white belly. The life span
of the Alabama sturgeon is unknown. Although few individuals probably
exceed 12 to 15 years of age, it is possible the species may live
longer.
The Alabama sturgeon is endemic to rivers of the Mobile River Basin
below the Fall Line (inland boundary of the Coastal Plain) (Mettee et
al. 1996, p. 83; Boschung and Mayden 2004, p. 109). Its current range
includes the Alabama River from R.F. Henry Lock and Dam downstream to
the confluence of the Tombigbee River. The species is also known to
survive in the Cahaba River. For information on range of the species
see the Criteria Used to Identify Critical Habitat section of this
rule.
Despite extensive and intensive efforts in the decade prior to its
listing, only eight Alabama sturgeon were captured, or reported
captured and released. These fish were collected from several locations
in the Alabama River between Millers Ferry Lock and Dam and its
confluence with the Tombigbee River (Rider and Hartfield 2007, p. 490).
Since the 2000 publication of the final rule listing the species, two
Alabama sturgeon have been captured or reported captured. One of these
was captured, videotaped, and released in the lower Cahaba River
shortly after publication of the final rule by a fisherman in July
2000. The most recent capture was an individual collected from the
Alabama River below Claiborne Lock and Dam in April 2007, by the
Alabama Department of Conservation and Natural Resources (ADCNR). This
fish was implanted with a sonic tag and released in May 2007 at the
location at which it was captured.
Flows in the Alabama River are heavily influenced by upstream
releases from Alabama Power Company and Corps hydropower projects, and
riverine habitats are fragmented by Claiborne and Millers Ferry Locks
and Dams. This 240-mile (386-kilometer) stretch of the Alabama River,
along with the lower Cahaba River, represents the last remaining viable
habitat for the sturgeon.
Previous Federal Actions
On May 5, 2000, we listed the Alabama sturgeon as endangered under
the Act (65 FR 26438). In the final listing rule, we determined that
designation of critical habitat was prudent but critical habitat was
not determinable, due to the lack of information on the sturgeon's
biological and habitat needs.
Following this listing decision, the Alabama-Tombigbee Rivers
Coalition (Coalition) brought suit in the United States District Court
for the Northern District of Alabama under the citizen-suit provision
of the Act and the judicial review provisions of the Administrative
Procedure Act, alleging several defects in the listing process. The
district court dismissed the Coalition's lawsuit for lack of standing,
but on appeal the U.S. Court of Appeals for the Eleventh Circuit
reversed, concluding that the Coalition did have standing to challenge
the listing decision. On remand, the District Court granted the United
States' motion for summary judgment but ordered the Service to issue
both a proposed and final rule designating critical habitat by May 14,
2006, and November 14, 2006, respectively. Alabama-Tombigbee Rivers
Coalition et al. v. Norton et al., No. CV-01-0194-VEH (Final Order,
Nov. 14, 2005). The Coalition appealed and the District Court stayed
the judgment pending review by the Eleventh Circuit. Under the
direction of the District Court, the Service would have two years from
the time of the Eleventh Circuit's decision to complete the designation
of critical habitat.
On February 8, 2007, the Eleventh Circuit affirmed the decision of
the District Court, finding among other things that vacating the
listing decision was not the proper remedy for failure to designate
critical habitat. Alabama-Tombigbee Rivers Coalition et al. v.
Kempthorne et al., 477 F.3d 1250 (11th Cir. 2007). On May 16, 2007, the
Eleventh Circuit issued its judgment as a mandate, thus lifting the
stay imposed by the District Court and requiring the Service to issue a
prudency determination and, if prudent, a proposed rule designating
critical habitat within one year (May 16, 2008), and a final rule
designating critical habitat within one year after that (May 16, 2009).
It should be noted that the Coalition asked the Supreme Court to review
the Eleventh Circuit's decision; that request was denied on January 7,
2008. Alabama-Tombigbee Rivers Coalition et al. v. Kempthorne et al.,
128 S. Ct. 877 (2008).
For more information on previous Federal actions concerning Alabama
sturgeon, refer to the final listing rule, which we published in the
Federal Register on May 5, 2000 (65 FR 26438). We are proposing this
action in accordance with section 4(b)(2) of the Act.
Critical Habitat
Critical habitat is defined in section 3 of the Act as:
(1) 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:
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered species or threatened species to the point at which the
measures provided under the Act are no longer necessary.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7 of the Act requires consultation on Federal actions
that may affect critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow the government or public to access private lands. Such
designation does not require implementation of restoration, recovery,
or enhancement measures by the landowner. Where the landowner seeks or
requests federal agency funding or authorization that may affect a
listed species or critical habitat, the consultation requirements of
section 7 would apply, but even in the event of a destruction or
adverse modification finding, the landowner's obligation is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, habitat within the
geographical area occupied by the species at the time it was listed
must contain features that are essential to the conservation of the
species. Critical habitat designations identify, to the extent known
using the best scientific data available, habitat areas that provide
essential life cycle needs of the species (areas on which are found the
primary constituent elements, as defined at 50 CFR 424.12(b)). Occupied
habitat that contains the features essential to the conservation of the
species meets the definition of critical habitat only if those features
may require special
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management considerations or protection. Under the Act, we can
designate critical habitat in areas outside the geographical area
occupied by the species at the time it is listed only when we determine
that those areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas should be proposed as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include the recovery plan for the species,
articles in peer-reviewed journals, conservation plans developed by
States and counties, scientific status surveys and studies, biological
assessments, or other unpublished materials and expert opinion or
personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, are necessary for the recovery of the species. For these
reasons, a critical habitat designation does not signal that habitat
outside the designated area is unimportant or may not be required for
recovery of the species.
Areas that support populations, but are outside the critical
habitat designation, will continue to be subject to conservation
actions we implement under section 7(a)(1) of the Act. They are also
subject to the regulatory protections afforded by the section 7(a)(2)
jeopardy standard, as determined on the basis of the best available
scientific information at the time of the agency action. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. Similarly, critical habitat designations made on the
basis of the best available information at the time of designation will
not control the direction and substance of future recovery plans,
habitat conservation plans (HCPs), or other species conservation
planning efforts if new information available to these planning efforts
calls for a different outcome.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas within the geographical area
occupied at the time of listing that contain features essential to the
conservation of Alabama sturgeon, and areas outside of the geographical
area occupied at the time of listing that are essential for the
conservation of Alabama sturgeon. We have reviewed available
information pertaining to the habitat requirements of this species.
This information includes our own published and unpublished data, field
notes, unpublished survey reports, communications with qualified
experts, peer-reviewed scientific publications, and the final and
proposed listing rules for the species. We are not currently proposing
any areas outside the geographical area presently occupied by the
species because we are unaware of any suitable areas of habitat for
this species outside of the area being proposed.
At the time of listing, we lacked the biological and habitat
information necessary to identify the primary constituent elements and
areas essential for conservation. This lack of information continues to
be an issue, since we have only two confirmed Alabama sturgeon captures
since publication of the final rule. Therefore, we reviewed the
available data and information on the Alabama sturgeon's closest
related species, the pallid (Scaphirhynchus albus) and the shovelnose
sturgeons (S. platorynchus). Unfortunately, although both the pallid
and shovelnose sturgeons are more abundant and widely distributed, very
little specific information is available concerning their biological
and physical requirements. However, by synthesizing the best scientific
available data on all three species, and considering historical and
current conditions at the locations where Alabama sturgeon have been
collected, we have identified the physical and biological requirements
of the Alabama sturgeon.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied by
the species at the time of listing to propose as critical habitat, we
consider the physical and biological features that are essential to the
conservation of the species to be the primary constituent elements laid
out in the appropriate quantity and spatial arrangement for
conservation of the species. These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific primary constituent elements (PCEs) required
for the Alabama sturgeon from its biological needs.
Space for Individual and Population Growth and for Normal Behavior
All river sturgeons (Scaphirhynchus spp.) are migratory and may
migrate hundreds of kilometers to spawn. The newly hatched larvae of
other river sturgeon are free-floating and may drift hundreds of
kilometers before settling to a benthic juvenile existence. Therefore,
connectivity of spawning, juvenile, and adult feeding and growing
habitats is necessary for the conservation of the species.
Based on collection records, the species is known to inhabit the
main channel of large coastal plain rivers of the Mobile River Basin.
Specimens have been taken over a variety of substrates including sand,
gravel, and mud, from 6 to 14 meters (m) (20 to 46 feet (ft)) deep
(Williams and Clemmer 1991, p. 26). The U.S. Army Corps of Engineers
identified 30 locations in the Alabama River where 58 Alabama sturgeon
were reportedly captured between 1950 and 1998, and documented channel
morphology and substrate types at 12 of the capture locations during
low flow conditions. Substrates associated with these capture sites
included sand, gravel, and limestone outcrops. All capture locations
downstream of Claiborne Lock and Dam were either on or within 300 m
(984 ft) of a sandbar.
Most historical and recent sturgeon capture sites are at or near
features
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presumably associated with feeding, reproduction, or refugia and
include rock walls, channel training devices, deep pools, mussel beds,
and/or stable sand and gravel bottoms (Burke and Ramsey 1985, p. 53,
Mayden and Kuhajda 1996, p. 257, Hartfield and Garner 1998, p. 4). The
presence of mussel beds represents stable channel habitats with high
aquatic invertebrate diversity and density that are likely important
feeding areas for sturgeon; deeper holes may be used as thermal refugia
during times of low flow and warmer temperatures (Hartfield and Garner
1998, p. 5).
Data collected from a radio-tagged Alabama sturgeon, released in
1985 near Millers Ferry Lock and Dam on the Alabama River and tracked
for four months, showed that its preferred position was in swift
current at a depth of 7.7 to 12.3 m (25 to 40 ft), but never at the
deepest part at any location except where bottom contour was uniform
(Burke and Ramsey 1985, p. 32). Irwin et al. (2005, p. 5) and Kynard et
al. (2007, p. 369) documented that adult shovelnose sturgeon are more
active at night. This type of behavior was also observed in juvenile
shovelnose sturgeon (Kynard et al. 2007, p. 369), and a similar pattern
is currently being observed by the Alabama sturgeon collected in 2007
that is being tracked in the lower Alabama River (ADCNR and Service
unpublished data 2007, 2008). During daylight hours in the summer of
2007, this sturgeon remained in the deeper, flowing portions of the
channel. However, during the late afternoon and early evening hours,
the sturgeon moved into shallower habitats directly adjacent to a small
perennial tributary. We have no evidence that the sturgeon moves into
these tributaries; it may be taking advantage of cooler water found at
the interface between the tributaries and the main stem of the river.
The amount of time this tagged fish spent in these areas suggests these
areas are important for feeding or for providing a thermal refugia
during the warmer summer months.
Food
Reports suggest that the species is an opportunistic bottom feeder
(Mayden and Kuhajda 1996, p. 257, Williams and Clemmer 1991, p. 26,
Burke and Ramsey 1985, p. 35). Keevin et al. (2007, p. 500) conducted a
stomach content analysis on 12 Alabama sturgeon from museum collections
and found aquatic insects and fish to be the dominate food items. This
is quite similar to the diets of the pallid and shovelnose sturgeons
described by Gerrity et al. (2006, p. 606) and Hoover et al. (2007, p.
494). Except for the absence of fish in the diet of shovelnose
sturgeon, all three species tended to feed on similar items, primarily
aquatic insects. The insects identified in these studies are found over
a variety of substrates including soft and hard rocky bottoms;
therefore, protection of most shallow-water habitat (shoals, gravel or
sand bars) is essential to maintaining an acceptable food base. A
distinct difference observed by Keevin et al. (2007, p. 502) in the
diet of the Alabama sturgeon was the presence of ceratopogonids (biting
midges) and siphlonurids (of a family of mayflies). These small,
aquatic larvae are very active, strong swimmers that tend to occupy the
water column or areas near the surface (Keevin et al. 2007, p. 502),
indicating that the sturgeon may be a mid-water column feeder. Irwin et
al. (2005, p. 39) found that juvenile shovelnose sturgeon
overwhelmingly preferred feeding in sandy substrates and actively
avoided gravel areas. It is unknown if this behavior is displayed by
the Alabama sturgeon, but 2007 tracking data suggest that the species
may rest in the deeper, fast-flowing areas during the day and feed in
shallow, sandy shoal areas at night (ADCNR and Service unpublished
data).
Water Quality
Egg development and hatching and larval and juvenile development
require moderate to high levels of dissolved oxygen, as well as
acceptable levels of other water quality parameters. For example,
research indicates a high incidence of hermaphrodism in shovelnose and
pallid sturgeon may be linked to water contamination (U.S.
Environmental Protection Agency (USEPA) 2007, p. 4).
There are currently more than 1,600 National Pollutant Discharge
Elimination System (NPDES) permits issued within the Alabama River
downstream of the Fall Line, which could impact sturgeon habitat. It is
possible that some of these point-source discharges, along with other
non-point sources of pollutants, could produce pollutant concentrations
that may be harmful to the Alabama sturgeon. At the time of listing in
May 2000, we believed that State water quality standards (which the
State adopted from the national standards set by the USEPA) were
protective of the Alabama sturgeon as long as discharges were within
permitted limits and enforced according to the provisions of the Clean
Water Act (Biggins 1994, p. 4). These water quality requirements were
established with the intent to protect all aquatic resources within the
State of Alabama and were presumed to be protective of the Alabama
sturgeon. However, the Service is currently in consultation with the
USEPA to evaluate the protectiveness of criteria approved in USEPA's
water quality standards for Alabama sturgeon and other threatened and
endangered species and their critical habitats as described in the
Memorandum of Agreement our agencies signed in 2001 (66 FR 11201).
Other factors that can potentially alter water quality are droughts and
periods of low flow, non-point source runoff from adjacent land
surfaces (e.g., excessive amounts of nutrients, pesticides, and
sediment), and random spills or unregulated discharge events. This
could be particularly harmful during drought conditions when flows are
depressed and pollutants are more concentrated. Therefore, adequate
water quality is essential for normal behavior, growth, and viability
during all life stages of the sturgeon, including egg development and
hatching, and larval and juvenile development.
Sites for Breeding, Reproduction, or Rearing (or Development) of
Offspring
The Alabama sturgeon is believed to reach sexual maturity between 5
and 7 years of age. Spawning frequency of both sexes is likely
influenced by food supply and fish condition, and may occur every 1 to
3 years. Similar to other river sturgeon, the Alabama sturgeon is
believed to migrate upstream during the late winter and spring to
spawn. These movements are likely extensive and cover long distances.
The capture of 12 individuals (including several gravid females)
during a single collection trip near the mouth of the Cahaba River on
March 21, 1969, suggests directional movements during the spawning
season (Williams and Clemmer 1991, p. 27). Gravid females with ripe
eggs have also been collected during late March, April, and early May,
which may indicate a prolonged spring spawning or yearly variations in
the occurrence of preferred spawning temperatures. Actual timing of
spawning during this period may also vary depending on water
temperature and river discharge. All sturgeon species produce eggs that
are adhesive and require a current for proper development. Although
specific locations at which eggs have been deposited have not been
identified for the Alabama sturgeon, they are presumably similar to
those of other river sturgeons, where eggs are deposited on hard bottom
substrates such as bedrock, armored gravel, or channel training works
in deep water
[[Page 30365]]
areas, and possibly in some larger tributaries, such as the Cahaba
River (Burke and Ramsey 1985, p. 53).
Although no information about larval development exists for the
Alabama sturgeon, we assume that the Alabama sturgeon may have similar
needs as other river sturgeons which require highly oxygenated, long
stretches of free-flowing water for development. The larvae are
planktonic, drifting with river currents for 12 to 13 days after
hatching, and exhibit a swim-up and drift behavior while floating in
currents (Kynard et al. 2007, p. 365). Research indicates that pallid
sturgeon larvae can drift more than 200 kilometers (km) (125 miles
(mi)) during the first 11 days of the larval life stage, depending on
water velocities, before settling to the benthic environment (Braaten
and Fuller 2007, p. 1). It is unclear, at present, whether Alabama
sturgeon require distances comparable to those exhibited by pallid
sturgeon, but the life history strategy is thought to be the same. A
further reduction in the distance of free-flowing habitat currently
available would likely be detrimental to the sturgeon.
Riverine Flows and Channel Stability
Flows in the Mobile River Basin have been substantially altered
from natural conditions due to the construction and operation of the
large number of impoundments. Additionally, the river's temperature,
biogeochemical processes that would have occurred in the absence of the
dams, and pollution assimilation capabilities have also been altered.
Flowing water provides a means for transporting nutrients and food
items, moderating water temperatures and dissolved oxygen levels, and
diluting pollutants, as well as transporting and suspending developing
sturgeon eggs and larvae.
The quality of water, which comprises the sturgeon's chemical
habitat, is directly related to the volume of water present in the
river. It affects sturgeon behavior, growth, and viability in all life
stages. In 1972, prior to the listing of the sturgeon, a 4,640 cubic-
feet-per-second flow requirement in the Alabama River at Montgomery was
established. This flow, which is approximately the 7Q10 (a measure of
lowest 7-day flow measured over a 10-year period) for this section of
the river, is believed to be protective of the Alabama sturgeon. We
believe this flow would result in the magnitude, frequency, duration,
and seasonality of discharge over time that is necessary to maintain
all life stages of the species in the riverine environment, including
migration, breeding site selection, resting, larval development,
protection of cool water refuges during low flow periods, as well as
sufficient velocities to inhibit excessive sedimentation.
Aquatic life, including fish, requires acceptable levels of
dissolved oxygen. The type of organism and its life stage determine the
level of oxygen required. Generally, among the fish, cold water species
are the most sensitive, with young life forms being most critical.
Temperature, another water quality parameter, is related to dissolved
oxygen. The amount of dissolved oxygen that is present in water (the
saturation level) depends upon water temperature. As the water
temperature increases, the saturated dissolved oxygen level decreases.
The more oxygen there is in the water, the greater the assimilative
capacity (ability to consume organic wastes with minimal impact) of
that water (Pitt 2000, pp. 6-7). Biochemical oxygen demand (BOD) is the
oxygen that would be required to stabilize the waste after its
discharge into a body of water. Wastewater discharges that have a high
BOD will have a much greater detrimental effect on stream dissolved
oxygen during critical summer months than they would during colder
months. Summer months also have lower stream flow rates, which worsens
the problem by further reducing the water's assimilative capacity (Pitt
2000, pp. 6-7). Flows should be sufficient to ensure at least 4
milligrams per liter of dissolved oxygen during low flow periods based
on the State water quality standards.
During 2007 and 2008, the Alabama River Basin experienced the worst
drought ever recorded. Although this drought is currently recognized as
the worst drought in modern history, some researchers believe that it
may not have been that unusual (B. Erhardt, U.S. Army Corps of
Engineers Meteorologist, pers. comm. 2008). Using bald cypress (a long-
lived species) growth rings as an indication, the 2007-08 hydrologic
period may have actually been more normal over the last 1000 years than
conditions experienced over the last 40 years (which may have been
exceptionally wet). Therefore, considering that sturgeon species have
survived a range of hydrologic conditions over the years, we believe
sturgeon are adapted to these periodic low flow conditions. Although
the sturgeon we are currently tracking survived the 2007-08 drought, we
do not believe that the Alabama sturgeon is adapted to survive extended
drought periods where water quality is compromised by excessive
discharges that the river is unable to assimilate. More specifically,
as described above, low-flow conditions affect the chemical environment
occupied by the fish and extended low-flow conditions coupled with
higher pollutant levels would likely result in behavior changes within
all life stages, but could be particularly detrimental to early life
stages (e.g., eggs and larvae).
Stable river bottoms also are required by the sturgeon. The
presence of stable river bottoms has been associated with the recent
and historical captures of sturgeon in the Alabama and Tombigbee
Rivers. Hartfield and Garner (1998, p. 6) documented the presence of
stable substrates interspersed between dredge and disposal sites in the
lower Alabama River. These included areas with stable sand and gravel
river bottoms, and bedrock walls. The presence of mussel beds and a
diverse and dense insect community provide an indication that channel
bottoms are relatively stable (Hartfield and Garner 1998, p. 6). As
mentioned above, the preferred diet of the sturgeon is aquatic
invertebrates; therefore, the presence of mussel beds may be an
important indicator of suitable sturgeon feeding habitat. This is
consistent with the data that are currently being collected from the
sturgeon that was released and tracked in 2007. This fish has remained
in the vicinity of well-known mussel beds on the lower Alabama River
since its release.
Primary Constituent Elements (PCEs) for the Alabama Sturgeon
Within the geographical area occupied by the Alabama sturgeon at
the time of listing, we must identify the PCEs that may require special
management considerations or protections.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, we have determined that
Alabama sturgeon's PCEs are:
1. A range of flows with a minimum 7-day flow of 4,640 cubic feet
per second during normal hydrologic conditions, measured in the Alabama
River at Montgomery.
2. River channel with stable sand and gravel river bottoms, and
bedrock walls, including associated mussel beds.
3. Limestone outcrops and cut limestone banks, large gravel or
cobble such as that found around channel training devices, and bedrock
channel walls that provide riverine spawning sites with substrates
suitable for egg deposition and development.
4. Long sections of free-flowing water to allow spawning migrations
and development of eggs and larvae.
5. Water temperature not exceeding 90 [deg]Fahrenheit (32
[deg]Celsius), dissolved
[[Page 30366]]
oxygen content over 4 milligrams per liter, and pH (a measure of
acidity) within the range of 6.0 to 8.5.
With this proposed designation of critical habitat, we intend to
conserve the physical and biological features that are essential to the
conservation of the species, through the identification of the
appropriate quantity and spatial arrangement of the PCEs sufficient to
support the life history functions of the species. The critical habitat
unit proposed for designation contains all of the PCEs and supports
multiple life processes.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the occupied
areas contain the physical or biological features essential to the
conservation of the species, and whether these features may require
special management considerations or protection. It is recognized that
numerous activities in and adjacent to the unit designated as critical
habitat, as described in this proposed rule, may affect one or more of
the PCEs found in that unit. These activities include, but are not
limited to, those listed in the Application of the ``Adverse
Modification'' Standard section as activities that may destroy or
adversely modify critical habitat. We summarize here the primary
threats to the physical and biological features essential to the
conservation of the species.
Water quality, as discussed in the Application of the ``Adverse
Modification'' Standard section, can influence all life stages of the
sturgeon. Water pollution and changes in water quality can originate
from either non-point or point source discharges. Non-point source
pollution is ubiquitous in the Mobile Basin and can originate from a
variety of land use practices (such as livestock grazing, row crop
farming, silvicultural, and residential development). The impacts from
nearly all non-point source pollutant sources can be managed by
implementing the appropriate best management practices. This may
include creation and maintenance of riparian buffers, and control of
soil loss and runoff from adjacent lands. Point source pollution
typically originates from industrial and municipal discharges, but may
include any discharge that originates from a single point. Point source
pollution can be managed by ensuring that NPDES permitted discharges
are within compliance at all times. This requires proper water quality
monitoring and record keeping, and ensuring that enough flow is present
in the river to assimilate the volume of material that is being
discharged.
The Service should be consulted with for disturbances to areas
upstream of those known to support sturgeon, including perennial
streams that may provide critical thermal refuges to the sturgeon at
the interface with the main channel, especially during times when river
flows are experiencing abnormally low levels (i.e., during droughts).
Therefore, prior to channel-disturbing activities, these areas should
be identified and precautions should be taken to ensure that the
integrity of these areas is maintained. Minimizing the effects of
navigational dredging and channelization (past evidence of which can be
seen throughout the historical range of the sturgeon) can be
accomplished by avoiding the removal of consolidated bed material and
rock walls, and consulting with the Service on the proper disposal
areas.
Criteria Used To Identify Critical Habitat
The Alabama sturgeon is extremely rare. Despite extensive and
intensive efforts in the decade prior to its listing, only eight
Alabama sturgeon were captured, or reported captured and released. All
river sturgeons are migratory and may migrate hundreds of kilometers to
spawn, and newly hatched larvae may drift hundreds of kilometers before
settling. Therefore, connectivity of spawning, juvenile, and adult
feeding and developmental habitats is necessary for the conservation of
the species.
We began our analysis by evaluating the Alabama sturgeon in the
context of its distribution throughout the historical range to
determine what portion of the range must be included to ensure
conservation of the species. We considered several factors in this
evaluation: (1) Inclusion of reaches that provide the highest
likelihood of egg and juvenile development, (2) inclusion of reaches
that contain suitable spawning habitat, and (3) inclusion of areas that
provide protection of the species during low flow periods and other
catastrophic events.
The historical range of the Alabama sturgeon included nearly every
major basin in the Mobile River basin downstream of the Fall Line,
comprising nearly 1,600 km (1,000 mi) of riverine habitat in the Mobile
River Basin in Alabama and Mississippi. There are records of Alabama
sturgeon from nearly all the major rivers in the Mobile River Basin
below the Fall Line, including the Black Warrior, Tombigbee, Alabama,
Coosa, Tallapoosa, Mobile, Tensaw, and Cahaba Rivers (Burke and Ramsey
1985, p. 1). However, over the last century, the species has
disappeared from at least 85 percent of its historical range, and since
the 1960s has experienced a significant decline in the remaining range.
Recent collections (since 1990) of the Alabama sturgeon are
confined to the lower Alabama River from its confluence with the
Tombigbee River upstream to R.F. Henry Lock and Dam, including the
lower Cahaba River (Rider and Hartfield 2007, p. 492). The entire
historical range of the Alabama sturgeon is now controlled by a series
of more than 25 large locks or dams. These man-made structures have
resulted in a series of impoundments that are interspersed with free-
flowing reaches of varying lengths. Within the Alabama sturgeon's
historical range there are three dams on the Alabama River (completed
between 1969 and 1971), two on the Black Warrior River (completed by
1971), and six on the Tombigbee River (completed between 1955 and
1985). These 11 dams alone have impounded and fragmented more than 970
km (583 mi) of riverine habitat once occupied by sturgeon. Prior to
construction of these structures, sturgeon could move freely between
feeding areas, and from feeding areas to sites that were suitable for
spawning and development of eggs and larvae.
The locks and dams that impound the river constitute barriers to
sturgeon passage. Although fish species that occupy the middle of the
water column (e.g., shad, catfishes, paddlefish) could, and do, pass
through the locks while they are being operated, there is no evidence
to suggest that sturgeon pass through the lock chambers during normal
lockages. Most adult sturgeons, including the Alabama sturgeon, are
benthic (bottom-dwelling) cruisers, and are not likely to move up in
the water column to scale physical hurdles (Cooke et al. 2002, p. 108).
The lock chambers at Millers Ferry and Claiborne Locks and Dams have
upper and lower sills which form a rather large hurdle (about 30 feet
above the river floor at the upper end of Miller Ferry) for sturgeon
moving upstream and downstream.
With migration routes impeded, isolated subpopulations of Alabama
sturgeon are unable to successfully recruit adequate numbers to
replenish the population. Reduced numbers of recruited sturgeon and
surviving adult fish can become more vulnerable to localized declines
in water and habitat quality caused by hydropower releases, local
riverine and land management practices, or by polluted discharges. It
is unlikely that Alabama sturgeon habitat and life cycle requirements
can be met in long stretches of low flow, such as those that exist in
the impounded areas
[[Page 30367]]
of the river, where decreased flows typically cause silt and other fine
sediments to accumulate over bottom habitats, creating unsuitable
conditions for spawning, feeding, and larval growth and development.
The Alabama sturgeon is considered extirpated from the upper
Alabama, Black Warrior, Tombigbee, Coosa, Tallapoosa, Mobile, and
Tensaw Rivers. The Upper Alabama is isolated by Robert F. Henry Lock
and Dam, and this reach of the river is essentially impounded to the
confluence of the Coosa and Tallapoosa Rivers, and does not contain
appropriate habitat for the conservation of the Alabama sturgeon.
Sturgeon have not been collected from the Black Warrior, Coosa,
Tallapoosa or Tombigbee Rivers in more than 30 years. With the
exception of the extreme lower Tombigbee River, all of these areas are
isolated from currently occupied river reaches and their riverine
habitats are impounded and highly fragmented by multiple large river
dams. Although some isolated areas within these drainages may contain
some of the appropriate habitat features for Alabama sturgeon, their
limited extent and the lack of continuity or accessibility to other
habitats limits their value to the species.
The Mobile, Tensaw, and lower Tombigbee Rivers are currently
accessible to Alabama sturgeon; however, there have been no confirmed
collections of the species in more than 20 years. In addition, the
natural hydrograph of the lower Mobile Basin has been radically altered
by multiple navigation and hydropower dams on the Tombigbee River, and
the flows are seasonally highly variable. These areas may be
occasionally used or visited by subadult or adult Alabama sturgeon;
however, there is no recent evidence that this is occurring and little
historical evidence of such use. Although some habitat features occur
in these river reaches, their value in conservation of the species is
not known.
At the time of listing, we considered the Alabama River from south
of Miller's Ferry Lock and Dam to the confluence of the Tombigbee River
to be occupied. Shortly after publication of the listing rule, an
Alabama sturgeon was captured and released at river mile 8.5 in the
Cahaba River. This capture of an adult sturgeon indicated that this
area also was occupied at the time of listing, given that the fish
could not have reached this area from other sections of the river due
to the lock and dam arrangement (see the Riverine Flows and Channel
Stability section), and would have been present at the time the rule
was published in the Federal Register. Given the fish's proximity to
the mouth of the Cahaba River and the lack of barriers with the Alabama
River section located between R.F. Henry Lock and Dam and the Millers
Ferry Lock and Dam, we believe the fish likely to use all of these
areas, and, therefore, consider them occupied at the time of listing.
There is some evidence of past upstream spawning runs in the Cahaba
River as well (Williams and Clemmer 1991, p. 27). Based on historical
information and recent collections, we consider all of the following
areas to be currently occupied: The Alabama River from R.F. Henry Lock
and Dam downstream to the confluence of the Tombigbee River, and the
Cahaba River from its confluence with the Alabama River upstream to
U.S. Highway 82 which is close to the Fall Line at Centreville,
Alabama. Given the lack of appropriate habitat elsewhere within the
historical range, we conclude that this proposed designation should
include all currently occupied habitat.
Once we determined that the proper scale of the proposed critical
habitat designation should cover the area currently occupied by the
species, we assessed the critical life history components of Alabama
sturgeon as they relate to habitat. Alabama sturgeon use the rivers for
spawning, larval and juvenile feeding and development, adult resting,
feeding, and staging, and to move between the areas that support these
components. Therefore, all areas meeting these requirements were
considered for inclusion.
We then investigated the habitat types that support these life
history components and where these habitat areas are located. We
evaluated empirical data (including that gathered from recent
radiotelemetry), recent channel bathymetry data (collected by the U.S.
Army Corps of Engineers), as well as published and unpublished
literature. These habitat components are described in the Primary
Constituent Elements section of this proposed rule.
To determine which areas should be designated as critical habitat,
we then evaluated where the necessary physical and biological features
of Alabama sturgeon habitat occur within the currently occupied
habitat. Detailed location data are included in the unit description in
the Proposed Critical Habitat Designation section of this proposed
rule. We have determined that these areas occur from the Alabama River,
at its confluence with the Tombigbee River, upstream to R.F. Henry Lock
and Dam. This also includes the Cahaba River upstream to U.S. Highway
82 near the Fall Line in Bibb County. All of these areas support one or
more of the PCEs and are accessible to sturgeon (i.e., not entirely
blocked by dams). All life stages are associated with flowing waters
and other features characteristic of free-flowing riverine habitats.
Nearly the entire length of the Alabama and Cahaba River currently meet
these requirements. This area is being proposed as critical habitat to
ensure adequate protection of spawning sites, habitat needed for
juvenile development, and movement of adult sturgeon to and from
spawning areas.
When determining proposed critical habitat boundaries within this
proposed rule, we made every effort to avoid including developed areas
such as waterways covered by buildings, docks, dams, and other
structures because such waterways lack PCEs for Alabama sturgeon. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developments. Any such areas inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, a Federal action involving
these areas would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action may affect adjacent critical habitat.
Proposed Critical Habitat Designation
We are proposing to designate one contiguous section of the Alabama
River and a portion of the lower Cahaba River as one critical habitat
unit for Alabama sturgeon. The areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for the Alabama sturgeon. The single unit we propose as
critical habitat is the Alabama River from its confluence with the
Tombigbee River, Clarke and Baldwin Counties, Alabama, upstream to R.F.
Henry Lock and Dam, Autauga and Lowndes Counties, Alabama; and the
Cahaba River from its confluence with the Alabama River upstream to
U.S. Highway 82 near the Fall Line in Bibb County, Alabama.
Following review of all areas within the range of the species, we
have determined that the proposed critical habitat area meets the
definition of critical habitat.
Table 1 shows the occupied unit, land ownership and approximate
area.
[[Page 30368]]
Table 1.--Occupancy of Alabama Sturgeon and Land Ownership of the Proposed Critical Habitat Unit
----------------------------------------------------------------------------------------------------------------
Size of unit
Critical habitat unit Occupied at time of Currently in kilometers Land ownership by
listing occupied (miles) type
----------------------------------------------------------------------------------------------------------------
Alabama and Cahaba Rivers....... yes................ yes............... 524 (326) State.
----------------------------------------------------------------------------------------------------------------
Below, we present a brief description of the unit and reasons why
it meets the definition of critical habitat for the Alabama sturgeon.
Unit: Alabama and Cahaba Rivers, Alabama
The critical habitat unit encompasses 524 km (326 mi) of river
channel. The portion of river channel in the Alabama River extends 394
km (245 mi) from its confluence with the Tombigbee River, Baldwin and
Clarke Counties, Alabama, upstream to R.F. Henry Lock and Dam, Autauga
and Lowndes Counties, Alabama; and the portion of river channel in the
Cahaba River extends 130 km (81 mi) from its confluence with the
Alabama River, Dallas County, Alabama, upstream to U.S. Highway 82,
Bibb County, Alabama. The Alabama and Cahaba Rivers are the last known
areas that still support the sturgeon, both of which were occupied at
the time of listing. This was recently confirmed by the 2007 collection
of an individual from the Alabama River below Claiborne Lock and Dam,
and the 2000 collection of an individual from the lower Cahaba River
(ADCNR pers. comm. 2007). Although the Alabama River, within this unit,
contains two physical barriers (Claiborne and Millers Ferry Locks and
Dams), it supports the PCEs to sustain this extremely rare fish. The
single critical habitat unit includes the channel of the rivers and
streams listed between the ordinary high water mark on each bank, which
is defined in 33 CFR 329.11 as ``the line on the shore established by
the fluctuations of water and indicated by physical characteristics
such as clear, natural line impressed on the bank; shelving; changes in
the character of the soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas.'' The distances between
landmarks marking the upstream and downstream boundaries of the unit
are given in kilometers and equivalent miles, as measured by tracing
the thalweg (a line connecting the lowest points of successive cross
sections) of the stream, not the straight-line distance. River miles
referenced in this rule were taken from a Corps of Engineers 1985
stream mileage table.
The river channel within the entire unit is owned by the State of
Alabama, and the vast majority of adjacent lands are under private
ownership, with the exception of a portion of the Cahaba River that
includes Talladega National Forest (Oakmulgee Division). Although the
Oakmulgee Division encompasses a total of 63,483.7 hectares (ha)
(156,871 acres (ac)), there are only about 9,951.6 ha (24,591 ac) that
are directly adjacent to the Cahaba River. The Barton Beach Reserve, a
small tract owned by The Nature Conservancy, encompasses 45.3 ha (112
ac) and covers approximately 1,150 meters (m) (3,773 ft) along the
Cahaba River. This unit meets the definition of critical habitat based
on the discussion above and contains all PCEs. This unit was known to
be occupied at the time of listing and is currently occupied. Special
management of the PCEs for the Alabama sturgeon and its habitat may be
required for the following threats: low flow conditions, detrimental
changes in water quality, reduction in the amount of free-flowing
habitat, and detrimental changes to the morphology or stability of the
river channel.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of a listed species or
destroy or adversely modify designated critical habitat. Decisions by
the 5th and 9th Circuit Courts of Appeals have invalidated our
definition of ``destruction or adverse modification'' (50 CFR 402.02)
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378
F.3d 1059 (9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife
Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely
on this regulatory definition when analyzing whether an action is
likely to destroy or adversely modify critical habitat. Under the
statutory provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the affected critical habitat would remain
functional (or retain the current ability for the PCEs to be
functionally established) to serve its intended conservation role for
the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a proposed species or result in destruction or adverse modification
of proposed critical habitat. Conference reports provide conservation
recommendations to assist the agency in eliminating conflicts that may
be caused by the proposed action. We may issue a formal conference
report if requested by a Federal agency. Formal conference reports on
proposed critical habitat contain an opinion that is prepared according
to 50 CFR 402.14, as if critical habitat were designated. We may adopt
the formal conference report as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). The conservation recommendations in a conference report are
advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that are likely to
adversely affect listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and Prudent Alternatives'' at 50
CFR 402.02 as
[[Page 30369]]
alternative actions identified during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
When we issue a biological opinion concluding that a project is not
likely to jeopardize a listed species or adversely modify critical
habitat, but may result in incidental take of listed animals, we
provide an incidental take statement that specifies the impact of such
incidental taking on the species. We then define ``Reasonable and
Prudent Measures'' considered necessary or appropriate to minimize the
impact of such taking. Reasonable and prudent measures are binding
measures the action agency must implement to receive an exemption to
the prohibition against take contained in section 9 of the Act. These
reasonable and prudent measures are implemented through specific
``Terms and Conditions'' that must be followed by the action agency or
passed along by the action agency as binding conditions to an
applicant. Reasonable and prudent measures, along with the terms and
conditions that implement them, cannot alter the basic design,
location, scope, duration, or timing of the action under consultation
and may involve only minor changes (50 CFR 402.14). The Service may
provide the action agency with additional conservation recommendations,
which are advisory and not intended to carry binding legal force.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect Alabama sturgeon or its
designated critical habitat will require section 7(a)(2) consultation
under the Act. Activities on State, Tribal, local or private lands
requiring a Federal permit (such as a permit from the U.S. Army Corps
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.) or a permit from us under section 10(a)(1)(B) of the Act) or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are examples of agency actions that may be
subject to the section 7(a)(2) consultation process. Federal actions
not affecting listed species or critical habitat, and actions on State,
Tribal, local or private lands that are not federally funded,
authorized, or permitted, do not require section 7(a)(2) consultations.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the primary constituent elements to be functionally established.
Activities that may destroy or adversely modify critical habitat are
those that alter the physical and biological features to an extent that
appreciably reduces the conservation value of critical habitat for
Alabama sturgeon. Generally, the conservation role of Alabama sturgeon
critical habitat unit is to support the various life-history needs of
the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may adversely affect critical habitat and, therefore,
should result in consultation for Alabama sturgeon include, but are not
limited to the following (please see Special Management Considerations
or Protection section for a more detailed discussion on the impacts of
these actions to the listed species):
(1) Actions that would significantly alter the existing flow regime
to the point at which the habitat could no longer sustain normal
behavior and promote species recovery. Such activities could include,
but are not limited to, construction and operation of dams, water
withdrawals, and channelization. These activities could eliminate or
reduce spawning habitats, impair the development of eggs and larvae,
impede or eliminate normal migration patterns, reduce the ability of
the river to adequately assimilate pollution, and compromise the
integrity and utility of cool water refuges (perennial tributaries). In
addition, flows less than 4,640 cubic feet per second, as determined by
the U.S. Army Corps of Engineers at Montgomery, would need to be
evaluated on an individual basis to determine if they may affect the
critical habitat, and conclusions could be dependent, in part, on
intervening flows (e.g., Catoma Creek, Cahaba River), water
temperature, and dissolved oxygen content in the Alabama River
downstream of Montgomery. Dependent on these factors and conditions in
the river at the time of the consultation, a Not Likely to Adversely
Affect Determination could still be possible.
(2) Actions that would significantly alter the morphology and
stability of the river channel. Such activities would include, but are
not limited to, dredging and mining of consolidated bed material,
impoundments, road and bridge construction, and destruction of riparian
vegetation. These activities could eliminate suitable substrates for
egg deposition and development, increase turbidity, and initiate
erosion along the banks, which could increase water temperatures and
reduce the width of the riparian zone.
(3) Actions that would significantly decrease the amount of
currently available free-flowing habitat. Such activities would
include, but are not limited to, construction and operation of dams,
water withdrawals, and diversions. These activities could further
minimize the currently available length of free-flowing habitat to
support spawning migrations and development of eggs and larvae.
(4) Actions that would significantly alter water chemistry beyond
what is required in the State of Alabama water quality standards. Such
activities would include, but are not limited to, the discharge of
chemicals, biological pollutants, nutrients, and other toxic substances
that originate from non-point or point source discharges. These
[[Page 30370]]
substances could directly, or through accumulation in tissue, impair
sturgeon behavior, reproduction, and growth.
We consider the unit proposed as critical habitat to contain
features essential to the conservation of Alabama sturgeon. The unit is
within the geographic range of the species, it was occupied by the
species at the time of listing, and it is currently occupied. Federal
agencies already consult with us on activities that may affect the
species, to ensure that their actions do not jeopardize the continued
existence of Alabama sturgeon.
Exemptions and Exclusions
Following review of all areas within the range of the species, we
have determined that the proposed critical habitat area meets the
definition of critical habitat.
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Improvement Act of 1997
(16 U.S.C. 670a), if the Secretary determines in writing that such plan
provides a benefit to the species for which critical habitat is
proposed for designation.''
There are no Department of Defense lands with a completed
integrated natural resources management plan within the proposed
critical habitat designation.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If based on
this analysis, we make this determination, then we can exclude the area
only if such exclusion would not result in the extinction of the
species.
In the following sections, we address a number of general issues
that are relevant to the exclusions we are considering. In addition, we
are conducting an economic analysis of the impacts of the proposed
critical habitat designation and related factors, which will be
available for public review and comment when it is complete. Based on
public comment on that document, the proposed designation itself, and
the information in the final economic analysis, the Secretary may
exclude from critical habitat additional areas beyond those identified
in this assessment under the provisions of section 4(b)(2) of the Act.
This is also addressed in our implementing regulations at 50 CFR
424.19.
Under section 4(b)(2) of the Act, we must consider economic
impacts. We also consider a number of factors in a section 4(b)(2)
analysis. For example, we consider whether there are lands owned or
managed by the Department of Defense where a national security impact
might exist. We also consider whether landowners having proposed
critical habitat on their lands have developed any conservation plans
for the area, or whether there are conservation partnerships that would
be encouraged by designation of, or exclusion from, critical habitat.
In addition, we look at any Tribal issues, and consider the government-
to-government relationship of the United States with Tribal entities.
We also consider any social or other impacts that might occur because
of the designation.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the Alabama
sturgeon are not owned or managed by the Department of Defense, there
are currently no HCPs for the Alabama sturgeon, and the proposed
designation does not include any Tribal lands or trust resources.
We anticipate no impact to national security, Tribal lands,
partnerships, or HCPs from this proposed critical habitat designation.
Based on the best available information, we believe that this unit
contains the features essential to the species. As such, we have
considered but not excluded any lands from this proposed designation.
However, during the development of a final designation, we will be
considering economic impacts, public comments, and other new
information, and areas may be excluded from the final critical habitat
designation under section 4(b)(2) and our implementing regulations at
50 CFR 424.19.
Economics
Section 4(b)(2) of the Act allows the Secretary to exclude areas
from critical habitat for economic reasons if the Secretary determines
that the benefits of such exclusion exceed the benefits of designating
the area as critical habitat. However, this exclusion cannot occur if
it will result in the extinction of the species concerned.
We are preparing an analysis of the economic impacts of proposing
critical habitat for Alabama sturgeon. We will announce the
availability of the draft economic analysis as soon as it is completed,
at which time we will seek public review and comment. At that time,
copies of the draft economic analysis will be available for downloading
from the Internet at the Federal eRulemaking Portal: http://
www.regulations.gov, or by contacting the Alabama Ecological Services
Field Office directly (see FOR FURTHER INFORMATION CONTACT). We may
exclude areas from the final rule based on the information in the
economic analysis.
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we are obtaining the expert
opinions of at least three appropriate independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our critical habitat designation is based on scientifically sound
data, assumptions, and analyses. We have invited these peer reviewers
to comment during this public comment period on our specific
assumptions and conclusions in this proposed designation of critical
habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, our final decision may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if we receive any requests for hearings. We
[[Page 30371]]
must receive your request for a public hearing within 45 days after the
date of this Federal Register publication. Send your request to the
person named in the FOR FURTHER INFORMATION CONTACT section. We will
schedule public hearings on this proposal, if any are requested, and
announce the dates, times, and places of those hearings, as well as how
to obtain reasonable accommodations, in the Federal Register and local
newspapers at least 15 days before the first hearing.
Required Determinations
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order (E.O.) 12866. OMB bases its determination upon the following four
criteria:
(1) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(2) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(3) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(4) Whether the rule raises novel legal or policy issues.
At this time, we lack the available economic information necessary
to determine whether the rule would have an annual effect on the
economy of $100 million or more or affect the economy in a material
way.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency must publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. SBREFA amended RFA to require
Federal agencies to provide a statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities.
At this time, we lack the available economic information necessary
to provide an adequate factual basis for the required RFA finding.
Therefore, we defer the RFA finding until completion of the draft
economic analysis prepared under section 4(b)(2) of the Act and E.O.
12866. This draft economic analysis will provide the required factual
basis for the RFA finding. Upon completion of the draft economic
analysis, we will announce availability of the draft economic analysis
of the proposed designation in the Federal Register and reopen the
public comment period for the proposed designation. We will include
with this announcement, as appropriate, an initial regulatory
flexibility analysis or a certification that the rule will not have a
significant economic impact on a substantial number of small entities
accompanied by the factual basis for that determination. We have
concluded that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provide the necessary opportunity for public comment.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or [T]ribal governments'' with
two exceptions. It excludes ``a condition of Federal assistance.'' It
also excludes ``a duty arising from participation in a voluntary
Federal program,'' unless the regulation ``relates to a then-existing
Federal program under which $500,000,000 or more is provided annually
to State, local, and [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the lands being proposed for critical
habitat designation are river bottoms owned by the State of Alabama and
do not fit the definition of ``small governmental jurisdiction.''
Therefore, a Small Government Agency Plan is not required. However, as
we conduct our economic analysis, we will further evaluate this issue
and revise this assessment if appropriate.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Alabama sturgeon in a takings implications assessment. The
takings implications assessment concludes that this designation of
critical habitat for Alabama sturgeon does not pose
[[Page 30372]]
significant takings implications for lands within or affected by the
designation.
Federalism
In accordance with E.O. 13132, this proposed rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with Department of the Interior and Department of
Commerce policy, we requested information from, and coordinated
development of, this proposed critical habitat designation with
appropriate State resource agencies in Alabama. The designation of
critical habitat in areas currently occupied by the Alabama sturgeon
imposes no additional restrictions to those currently in place and,
therefore, has little incremental impact on State and local governments
and their activities. The designation may have some benefit to these
governments because the areas that contain physical and biological
features essential to the conservation of the species are more clearly
defined, and the primary constituent elements necessary to support the
life processes of the species are specifically identified. This
information does not alter where and what federally-sponsored
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7
consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), it has been
determined that the rule does not unduly burden the judicial system and
that it meets the requirements of sections 3(a) and 3(b)(2) of the
Order. We have proposed designating critical habitat in accordance with
the provisions of the Act. This proposed rule uses standard property
descriptions and identifies physical and biological features essential
to the conservation of the species within the designated areas to
assist the public in understanding the habitat needs of the Alabama
sturgeon.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
Government-to-Government Relations with Native American Tribal
Governments (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, and Secretarial Order 3206, we readily
acknowledge our responsibility to communicate meaningfully with
recognized Federal Tribes on a government-to-government basis. In
accordance with Secretarial Order 3206 of June 5, 1997 (American Indian
Tribal Rights, Federal-Tribal Trust Responsibilities, and the
Endangered Species Act), we readily acknowledge our responsibilities to
work directly with Tribes in developing programs for healthy
ecosystems, to acknowledge that Tribal lands are not subject to the
same controls as Federal public lands, to remain sensitive to Indian
culture, and to make information available to Tribes. We have
determined that there are no Tribal lands that meet the definition of
critical habitat for Alabama sturgeon. Therefore, we have not proposed
designation of critical habitat for Alabama sturgeon on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
There are currently two hydroelectric dams (Robert F. Henry and Millers
Ferry Locks and Dams) located on portions of the rivers under
consideration for designation of critical habitat. Both Robert F. Henry
and Millers Ferry Locks and Dams are located on the Alabama River and
are owned and operated by the U.S. Army Corps of Engineers, and have
total generating capacities of 68 and 75 megawatts, respectively.
Hydroelectric production was likely impacted by low flows resulting
from recent drought conditions; however, under normal hydrologic
conditions, where flows at Montgomery equal a 7-day average of 4,640
cubic feet per second, flows would not be altered by this designation
of critical habitat. With designation of critical habitat, the
Service's ongoing consultation and future consultations with the U.S.
Army Corps of Engineers on their management of the Mobile River Basin
reservoirs regarding the Alabama sturgeon will require assessment of
potential impacts to critical habitat. However, these consultations
were already required because of the presence of Alabama sturgeon in
the rivers that are being proposed for designation. Flow
recommendations for the Alabama sturgeon remain the same as the levels
we consulted on prior to the designation. Consequently, we do not
expect this proposed rule to designate critical habitat for Alabama
sturgeon to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required. However, we will further
evaluate this issue as we conduct our economic analysis, and review and
revise this assessment as warranted.
[[Page 30373]]
References Cited
To obtain a complete list of all references we cited in this
rulemaking, contact the Field Supervisor, Alabama Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary authors of this package are the staff of the Alabama
Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend Part 17, Subchapter B of Chapter
I, Title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Public Law 99-625, 100 Stat. 3500; unless otherwise
noted.
2. In Sec. 17.11(h), revise the entry for ``Sturgeon, Alabama''
under ``Fishes'' in the List of Endangered and Threatened Wildlife to
read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES
* * * * * * *
Sturgeon, Alabama................ Scaphirhynchus U.S.A. (AL, MS).... NA................. E 697 17.95(e) NA
suttkusi.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. In Sec. 17.95, amend paragraph (e) by adding an entry for
``Alabama sturgeon (Scaphirhynchus suttkusi),'' in the same
alphabetical order that the species appears in the table at Sec.
17.11(h), between the existing entries for Colorado squawfish and Gulf
Sturgeon, to read as follows:
Sec. 17.95 Critical habitat-fish and wildlife.
* * * * *
(e) Fishes
* * * * *
Alabama sturgeon (Scaphirhynchus suttkusi)
(1) Critical habitat unit is depicted for Baldwin, Monroe, Wilcox,
Clarke, Dallas, Lowndes, Autauga, Bibb, and Perry Counties, Alabama, on
the map below.
(2) The primary constituent elements of critical habitat for the
Alabama sturgeon are:
(i) A range of flows with a minimum 7-day flow of 4,640 cubic feet
per second, during normal hydrologic conditions, measured in the
Alabama River at Montgomery.
(ii) River channel with stable sand and gravel river bottoms, and
bedrock walls, including associated mussel beds.
(iii) Limestone outcrops and cut limestone banks, large gravel or
cobble such as that found around channel training devices, and bedrock
channel walls that provide riverine spawning sites with substrates
suitable for egg deposition and development.
(iv) Long sections of free-flowing water to allow spawning
migrations and development of eggs and larvae.
(v) Water temperature not exceeding 90 [deg]Fahrenheit (32
[deg]Celsius), dissolved oxygen content over 4 milligrams per liter,
and pH within the range of 6.0 to 8.5.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, docks, dams, runways, roads, and other paved
areas) and the land or waterway on which they are located existing
within the legal boundaries on the effective date of this rule.
(4) Critical habitat map unit. Data layers defining the map unit
were created on a base of USGS 7.5' quadrangles, and the critical
habitat unit was then mapped using Universal Transverse Mercator (UTM)
coordinates.
(5) Unit: Alabama and Cahaba Rivers; Baldwin, Monroe, Wilcox,
Clarke, Dallas, Lowndes, Autauga, Perry, and Bibb Counties, Alabama
The unit encompasses 524 km (326 mi) of river channel. The portion
of river channel in the Alabama River extends 394 km (245 mi) from its
confluence with the Tombigbee River, Baldwin and Clarke Counties,
Alabama, upstream to R.F. Henry Lock and Dam, Autauga and Lowndes
Counties, Alabama; and the portion of river channel in the Cahaba River
extends 130 km (81 mi) from its confluence with the Alabama River,
Dallas County, Alabama, upstream to U.S. Highway 82, Bibb County,
Alabama.
Note: Map of Unit, Critical Habitat for Alabama Sturgeon
(Scaphirhynchus suttkusi): Alabama and Cahaba Rivers, follows:
BILLING CODE 4310-55-P
[[Page 30374]]
[GRAPHIC] [TIFF OMITTED] TP27MY08.000
* * * * *
Dated: May 15, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-11461 Filed 5-23-08; 8:45 am]
BILLING CODE 4310-55-C