[Federal Register Volume 75, Number 105 (Wednesday, June 2, 2010)]
[Rules and Regulations]
[Pages 30714-30730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13233]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 223
[Docket No. 070910507-0037-02]
RIN 0648-AV94
Endangered and Threatened Wildlife and Plants: Final Rulemaking
To Establish Take Prohibitions for the Threatened Southern Distinct
Population Segment of North American Green Sturgeon
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule and notice of availability of a final environmental
assessment.
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SUMMARY: This final ESA section 4(d) rule represents the regulations
that we, the National Marine Fisheries Service (NMFS), believe
necessary and advisable to conserve the threatened Southern Distinct
Population Segment of North American green sturgeon (Acipenser
medirostris; hereafter Southern DPS). We apply the prohibitions listed
under ESA section 9 for the Southern DPS, and we highlight specific
categories of activities that are likely to result in take of Southern
DPS fish. We do not find it necessary and advisable to apply the take
prohibitions to certain categories of activities that contribute to
conserving the Southern DPS. We also provide a variety of methods by
which take of the Southern DPS may be authorized. This document also
announces the availability of a final draft environmental assessment
(EA) that analyzes the environmental impacts of promulgating the 4(d)
regulations for the Southern DPS.
DATES: The effective date of this final rule is July 2, 2010.
ADDRESSES: Reference materials regarding this final rule can be
obtained via the Internet at http://www.swr.nmfs.noaa.gov or by
submitting a request to the Assistant Regional Administrator, Protected
Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite
4200, Long Beach, CA 90802-4213.
FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region
(562) 980-4115, or Lisa Manning, NMFS, Office of Protected Resources
(301) 713-1401.
SUPPLEMENTARY INFORMATION:
Background
We determined that the Southern DPS is at risk of extinction in the
foreseeable future throughout all or a significant portion of its range
and listed the species as threatened under the ESA on April 7, 2006 (71
FR 17757). At that time we summarized the process for considering the
application of ESA section 9 prohibitions to the threatened Southern
DPS. In the case of threatened species, ESA section 4(d) states that
the Secretary shall decide whether, and to what extent, to extend the
ESA section 9(a) prohibitions, including those regarding take of the
species, and authorizes us to issue regulations we consider necessary
and advisable for the conservation of the species. Such regulations may
include any or all of the prohibitions that automatically apply to
endangered species. Those prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take the
listed species. The term ``take'' means to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in
any such conduct. (16 U.S.C. 1532(19)). The term ``harm'' is defined as
any act which actually kills or injures fish or wildlife. Such an act
may include significant habitat modification or degradation which
actually kills or injures fish or wildlife by significantly impairing
essential behavioral patterns, including breeding, spawning, rearing,
migrating, feeding, or sheltering. (50 CFR 222.102).
Whether take prohibitions or other protective regulations are
necessary or advisable is in large part dependent on
[[Page 30715]]
the biological status of the species and potential impacts of various
activities on the species. Green sturgeon have persisted for millions
of years through cycles of naturally occurring perturbations that have
likely presented short- and long-term challenges to the species'
survival. We conclude that the threatened Southern DPS of North
American green sturgeon is currently at risk of extinction primarily
because of human-induced ``takes'' involving elimination of freshwater
spawning habitat, degradation of freshwater and estuarine habitat
quality, water diversions, fishing, and other causes. Therefore, we
conclude that extending the take prohibitions to the Southern DPS is
necessary and advisable.
When the final rule to list the Southern DPS was published on April
7, 2006, we solicited the public for information that would inform the
ESA section 4(d) rulemaking. Specific information requested can be
found in the final rule (71 FR 17757; April 7, 2006). No substantive
additional comments, beyond those that had been received during prior
solicitations for information, were received.
Public scoping workshops held on May 31 and June 1, 2006, helped
advance our understanding of the threats that are likely to result in
the take of Southern DPS fish. In cases where evidence of direct take
due to a particular activity was lacking, activities that have caused
take of species that use similar habitats (i.e., migratory, spawning,
and rearing), consume similar prey types, have similar morphologies
and/or physiologies, and/or share other life history requirements
(e.g., white sturgeon (Acipenser transmontanus) and Chinook salmon
(Oncorhynchus tshawytscha)) were identified and considered for their
effects on Southern DPS fish. More detailed justification regarding the
use of take information for surrogate species (i.e., one that shares a
similar life history or habitat requirements) to infer the take
potential of an activity on the Southern DPS fish is provided in
previous Federal Register notices (70 FR 17386, April 6, 2005; 71 FR
17757, April 7, 2006).
On May 21, 2009, we proposed protective regulations under section
4(d) of the ESA to extend the prohibitions listed under ESA sections
9(a)(1)(A) through 9(a)(1)(G) for the threatened Southern DPS, but
included certain exceptions and exemptions from the take prohibitions
for activities that we have determined to be adequately protective of
the Southern DPS (74 FR 23822).
Summary of Comments and Information Received in Response to the
Proposed Rule and Draft Environmental Assessment
The public comment period for the proposed rule and draft
Environmental Assessment (EA) was open from May 21, 2009, through July
6, 2009. During the comment period, NMFS received 7 written comments on
the proposed rule and draft EA from various agencies, non-governmental
organizations, and individuals. A summary of the comments and NMFS'
responses to those comments are presented here.
Comments and Responses
Comment 1: One commenter requested clarification in the draft EA
regarding the exception for emergency fish rescue activities under
Alternative B. Specifically, the commenter was unclear what 4(d)
programs were referred to in the sentence stating that ``[p]roject-
related activities * * * would not be considered an emergency fish
rescue activity and would be subject to review under ESA section 7 or
10, or under another 4(d) program.''
Response: We corrected the sentence in the final EA to read
``Project-related activities * * * would not be considered an emergency
fish rescue activity and would be subject to review under ESA section 7
or 10.'' We removed the phrase ``or under another 4(d) program''
because the ESA 4(d) Rule does not include a 4(d) program to cover such
project-related activities.
Comment 2: One commenter stated that the draft EA needs to describe
the specific categories of activities to which the take prohibitions
would be applied under Alternative C.
Response: The final EA was revised to clarify that under
Alternative C, the take prohibitions would apply to the same specific
categories of activities and in the same areas as described under
Alternative A. Those categories of activities are: Commercial,
recreational, and tribal fisheries; collecting or handling Southern DPS
fish for any purpose; habitat-altering activities affecting passage or
spawning and rearing habitat in the Central Valley, California;
operation of water diversion, dredging, and power plant activities
resulting in entrainment or impingement of Southern DPS fish;
application or discharge of pollutants adjacent to or within waterways
occupied by Southern DPS fish; and introduction or release of non-
native species adjacent to or within waterways occupied by Southern DPS
fish.
Comment 3: One commenter felt that the proposed rule listed
dredging as a threat to only juvenile green sturgeon and wanted NMFS to
acknowledge that adult Southern DPS fish have the potential to be found
in dredging areas outside the Central Valley, San Francisco Bay, Suisun
Bay and San Pablo Bay.
Response: The final rule was revised to acknowledge that dredging
is a potential threat to adult green sturgeon. Dredging occurs in the
following areas where adults also occur: The Lower Sacramento River,
Sacramento-San Joaquin Delta, Elkhorn Slough, Suisun Bay, San Pablo
Bay, San Francisco Bay, Noyo Harbor, and Humboldt Bay in California;
Coos Bay, Yaquina Bay, Tillamook Bay, and Nehalem Bay in Oregon; the
Lower Columbia River Estuary, the Lower Columbia River, Willapa Bay,
Grays Harbor, and Puget Sound in Washington; and coastal U.S. marine
waters (74 FR 52300, October 9, 2009). Although adults occur in areas
where dredging takes place, we don't have any direct evidence of the
effect that dredging has on adult green sturgeon.
Comment 4: One commenter asked why the draft EA specifically
excludes the Channel Islands from the list of areas known to be
occupied by Southern DPS green sturgeon, noting that this exclusion was
not mentioned in the proposed critical habitat designation for the
species (73 FR 52084, September 8, 2008).
Response: At this time we do not have any data showing that
Southern DPS green sturgeon occur in waters around the California
Channel Islands and we specifically noted this in the description of
occupied areas in the draft EA. However, the protections under the ESA
4(d) rule would apply to Southern DPS green sturgeon wherever they are
found. Thus, if a Southern DPS green sturgeon occurred in the waters
around the Channel Islands, the take prohibitions under the ESA 4(d)
rule would apply to that fish. Because of similarity of appearance, any
green sturgeon occurring in the marine environment (including estuaries
in Washington, Oregon, and Humboldt Bay) would be considered the listed
species as they cannot be identified as belonging to a particular DPS
unless genetic samples are taken and analyzed. The final EA was revised
to include a statement clarifying this.
Comment 5: Two commenters felt that the five alternative approaches
need to be described in greater detail and that the geographic
limitations and distinctions of the proposed rule and alternatives are
not clearly laid out. Further clarification was requested.
[[Page 30716]]
Response: The final EA was revised to more clearly describe the
geographic limitations and distinctions between the various
alternatives considered.
Comment 6: One commenter recommended that NMFS consult with the
Pacific Fishery Management Council (PFMC) as early in the process as
possible concerning the effects of the ESA 4(d) Rule on fisheries
managed under the PFMC.
Response: NMFS is currently working with the PFMC regarding the
potential effects of the West Coast groundfish bottom trawl fishery on
the listed Southern DPS of green sturgeon and its designated critical
habitat.
Comment 7: One commenter stated that the San Francisco Bay is not
used as habitat for green sturgeon and that regulating take and
requiring consultation on activities that are not limiting the recovery
of the Southern DPS diverts staff resources from other permitting
actions that would have positive effects.
Response: The best available data for the San Francisco Bay
indicate that green sturgeon are present in both Central and South San
Francisco Bay, albeit in low numbers compared to other parts of the San
Francisco Bay/Delta Region. The survey methods and sampling gear used
in studies within San Francisco Bay were not designed to target green
sturgeon, and thus the data may not be truly representative of the
relative levels of green sturgeon use among the bays and the Delta. For
example, given that all green sturgeon must pass through Central San
Francisco Bay in their migrations to and from the ocean, it is expected
that larger numbers of green sturgeon are using this area at certain
times of the year. In addition, the catch data do not provide
information about the distribution of juvenile green sturgeon
throughout the bays and the Delta. Based on the best available
information, juvenile green sturgeon are believed to distribute widely
throughout the bays and Delta for feeding and rearing and be present in
all months of the year. Detailed fishery-dependent data for the San
Francisco Bay is provided in the final critical habitat designation (74
FR 52300, October 9, 2009).
Comment 8: One commenter strongly supports the 4(d) rule and
provided the information that green sturgeon are vulnerable to selenium
toxicity from feeding on the overbite clam. The commenter stated that
selenium toxicity can cause reproductive failure and the threat of
reduced recruitment through selenium toxicity puts additional stress on
the Southern DPS population.
Response: NMFS appreciates the information provided regarding green
sturgeon vulnerability to selenium toxicity. Recent studies have shown
that green sturgeon are more sensitive to selenium than white sturgeon
and continued monitoring of selenium levels in sediments and research
on the sensitivity of green sturgeon to this and other contaminants
would be supported (Kaufman et al., 2008).
Comment 9: One commenter felt that including marine coastal waters
as green sturgeon critical habitat is unjustified as there is no
reliable data on the take of the Southern DPS in coastal waters.
Response: Comments pertaining to critical habitat were addressed in
the final critical habitat designation for green sturgeon (74 FR 52300,
October 9, 2009). Activities that occur in coastal marine waters that
may cause take of green sturgeon include bottom trawling, disposal of
dredged material, hydrokinetic projects and pollution from commercial
shipping.
Comment 10: One commenter stated that sand mining operations in San
Francisco and Suisun Bays are highly regulated and there is very little
evidence that sand mining in the San Francisco Bay-Delta Estuary
negatively impacts green sturgeon or their habitat. The commenter
requested that additional exceptions be included for activities such as
sand mining that pose a low risk of take.
Response: In 2006, NMFS completed formal consultation with the U.S.
Corps of Engineers under section 7 of the ESA for sand mining
activities in the San Francisco and Suisun Bay region. The resulting
biological opinion concluded that sand mining activities were not
likely to jeopardize threatened green sturgeon (NMFS, 2006). An
Incidental Take Statement (that remains discretionary until a 4(d) rule
has been promulgated) was included with the biological opinion that
provides protection to the sand miners for the entrainment of one green
sturgeon per year for each of the three sand mining companies operating
in the region at the time the biological opinion was written.
Comment 11: One commenter stated that we do not have data to
differentiate between Northern DPS and Southern DPS green sturgeon in
fisheries bycatch, but we require a Fisheries Management and Evaluation
Plan (FMEP) to include measures specifically to protect Southern DPS
green sturgeon.
Response: Acknowledging the fact that we cannot tell the difference
between NDPS and SDPS fish due to similarity of appearance, the FMEPs
must address green sturgeon and do not require that the DPS be
determined.
Comment 12: One commenter stated that the green sturgeon fishery
was mismanaged and that more care should have been taken to prevent the
fishery from becoming overfished.
Response: NMFS acknowledges that a lack of monitoring and directed
management of the green sturgeon has likely contributed to its current
threatened status. However, since the listing, academic institutions,
the states, NMFS and the tribes have been conducting more comprehensive
studies that focus on green sturgeon in an effort to better understand
its biology, status and recovery needs. It is our hope that finalizing
this 4(d) rule and enforcing the take prohibitions will further the
conservation of the species and aid in its recovery.
Comment 13: One commenter provided the information that there is a
new surge in the green sturgeon population in Yaquina Bay, and feels
that listing green sturgeon as threatened in this area is inaccurate
and unfounded.
Response: NMFS appreciates the information provided regarding
observations of green sturgeon in Yaquina Bay and agrees that
additional studies are needed to better understand the use of coastal
estuaries (including Yaquina Bay) and coastal marine waters by both
DPSs of green sturgeon. Southern DPS presence in Yaquina Bay was
confirmed in 2006 by the detection of one tagged Southern DPS green
sturgeon (pers. comm. with Dan Erickson, ODFW, September 3, 2008). The
Southern DPS was listed based on several threats, including the
concentration of spawning to one river. Each Southern DPS green
sturgeon carries the listing with it wherever it goes as the listing is
not limited by geographic area. We acknowledge the commenter's
observations suggesting that the number of green sturgeon using Yaquina
Bay has increased. While this news is promising: (1) We recognize that
green sturgeon may experience sporadic recruitment success depending on
many factors that are not well understood; and (2) this uncertainty
coupled with a lack of population abundance estimates and a limited
understanding of population structure has led us to adopt regulations
necessary and advisable for the conservation of the Southern DPS. We
will conduct periodic status reviews of both DPSs and as more
information becomes available we will revise our regulations if
necessary.
Comment 14: One commenter felt that the requirement that research
or monitoring that involves action, permitting or funding by a Federal
agency must still comply with the
[[Page 30717]]
requirements of ESA section 7(a)(2) negates the exception from the take
prohibitions for all researchers and stated that Federal employees who
can fulfill all other requirements cannot use this exception. If non-
Federal studies do not need to be analyzed in order to ensure that they
would not jeopardize the species, then it seems counterintuitive that
Federal studies with the same requirements would create jeopardy. The
commenter also felt that the requirement that the activity must comply
with required state reviews or permits negates the exception because as
part of the application process, state permits require a copy of the
authorization from NMFS when working with species listed under the ESA.
Response: Under the 4(d) Rule, we can exempt a non-Federal entity
from the take prohibitions, but cannot exempt Federal agencies from the
jeopardy standard under section 7 of the ESA. Compliance with section
7(a)(2) of the ESA would be required, but the consultation would be
limited to an analysis of whether the activity may jeopardize the
continued existence of the species or destroy or adversely modify
critical habitat, and would not involve an assessment of take. Section
7 of the ESA does not apply to non-Federal entities. Although Federal
employees are still subject to the section 7 jeopardy standard, under
the exception they would not be required to obtain an ESA section
10(a)(1)(A) permit for their research/monitoring activities if
conducted according to the exception criteria. The Federal biologists
carrying out research activities would need to obtain state permits
regardless of whether Federal take prohibitions are in place or not.
The exception simplifies the NMFS review and approval process for
research activities and relies on the state review and permits to
minimize impacts related to the research activities. In the state
application, applicants will need to identify that their activities
meet the exception criteria and will need to indicate that they have
submitted the information to NMFS or indicate that NMFS has confirmed
that their activities meet the exception criteria.
Comment 15: One commenter felt that NMFS has not taken into account
the extent of the existing regulatory programs and improvement to the
health of the San Francisco Bay-Delta ecosystem that has taken place
over the last 30 years and stated that certain activities are already
regulated under other Federal, state and local programs that directly
govern activities that NMFS stated could result in the take of green
sturgeon. The commenter recommended that NMFS provide exceptions from
the take prohibitions for navigation channel and harbor berths
dredging, dredged material placement, mineral extraction and
maintenance and installation of in-water and shoreline structures. The
commenter also recommended that exceptions for the small business
category of construction activities be considered.
Response: NMFS acknowledges that many of the activities that may
cause take of green sturgeon are already regulated by existing Federal,
state and local laws and regulations, and appreciates any efforts that
have been made to protect and improve habitats where green sturgeon
reside. However, these laws, regulations, and programs may not
specifically address green sturgeon and may not be as protective of
green sturgeon as the 4(d) Rule. For example, there is a 50-year
dredging program in the San Francisco Bay region that currently has not
implemented measures that would specifically protect green sturgeon.
Construction activities conducted by small businesses may also not
include measures that would be adequately protective of green sturgeon.
However, any protections already afforded to green sturgeon through
existing programs would be considered in NMFS' analyses under section 7
or section 10 of the ESA.
Comment 16: One commenter requested that a public hearing be held
in coastal Oregon prior to publishing the final rule.
Response: A workshop to discuss the ESA 4(d) rule prohibitions and
exceptions/exemptions with state fishery management agencies, NMFS, and
representatives from the fishing industry was held in Newport, Oregon
on March 15, 2010.
Comment 17: One commenter requested clarification on the
Protection/Conservation Measures or Benefits under Table 1, as
emergency rescue and habitat restoration indicates that there are no
benefits provided to green sturgeon in these activities.
Response: The Note section under Table 1 was clarified to state
that the ``Protective/conservation measures or benefits'' column refers
to whether the activity, as it is currently conducted, includes
protections or benefits to green sturgeon. Emergency rescue activities
and habitat restoration activities that are not conducted according to
the criteria under the exceptions do not provide benefits to green
sturgeon and are therefore not covered under the exceptions. If these
activities may cause take of green sturgeon, that take must be covered
under section 7 or 10 of the ESA, or come under compliance with the
exceptions criteria.
Comment 18: One commenter requested clarification in the draft EA
regarding which states' recreational fishing regulations, prior to
2006, did not differentiate between white sturgeon and green sturgeon.
Response: The final EA was revised to clarify that, prior to 2006,
state recreational fishing regulations in Washington, Oregon, and
California did not differentiate between white sturgeon and green
sturgeon.
Comment 19: One commenter suggested updating the 2005 reference for
the Environmental Water Account because the program expired in 2007 and
a revised program is currently in place with adjusted water amounts to
augment instream flows.
Response: The final EA was updated to remove the outdated reference
for the Environmental Water Account.
Spatial Context for ESA 4(d) Rule Application
As described in a Federal Register notice (68 FR 4433) published on
January 23, 2003, we determined that based on genetic and behavioral
information, North American green sturgeon is comprised of at least two
DPSs that qualify as species under the ESA: (1) A northern DPS
consisting of populations originating from coastal watersheds northward
of and including the Eel River (``Northern DPS''); and (2) a southern
DPS consisting of populations originating from coastal watersheds south
of the Eel River (``Southern DPS'') and the Central Valley of
California. These geographic boundaries were largely defined by genetic
evidence indicating that, among samples from rivers where green
sturgeon are known to spawn (i.e., the Rogue, Klamath, and Sacramento
rivers), the Rogue and Klamath River fish were more similar to one
another than to the Sacramento River fish (Israel et al., 2004).
Although the Southern DPS boundaries are defined by the species'
genetic structure and its likely strong homing capabilities and
spawning site fidelity, the spatial extent of the ESA listing and take
prohibitions for the Southern DPS is not confined to areas south of the
Eel River. Detailed information on occurrences of the Southern DPS
green sturgeon is provided in the proposed 4(d) rule (74 FR 23822, May
21, 2009).
Sections 10(a)(1)(A) and 10(a)(1)(B) provide exceptions to the
section 9 take prohibitions. NMFS can authorize research and
enhancement through section 10(a)(1)(A) permits and
[[Page 30718]]
incidental take through section 10(a)(1)B) permits. While this rule
applies the section 9 take prohibitions to any activity that takes the
Southern DPS, we wanted to determine which activities would most likely
impede efforts necessary to conserve and recover the Southern DPS. To
do this, we considered the following questions: (1) For which
activities do we have evidence of take of Southern DPS fish; (2) for
those activities where evidence of Southern DPS take does not exist, is
there evidence of take of surrogate species that share similar
biological requirements with Southern DPS fish; (3) are protective/
conservation measures underway to reduce or minimize take imposed by
some activities; and (4) are there additional protective/conservation
measures that, if taken, would reduce take to low enough levels such
that particular activities could proceed without appreciably reducing
the likelihood of survival and recovery of the Southern DPS?
Commercial and Recreational Fisheries Activities
Take of Southern DPS fish occurs during commercial and recreational
fishing activities throughout the range of North American green
sturgeon. However, quantifying fishery-related take reliably and
assessing its effects is challenging because: (1) Northern and Southern
DPS fish are morphologically indistinguishable from one another and
when green sturgeon have been taken, they have rarely been identified
to the DPS level; (2) until recently some fisheries did not report
green sturgeon take; and (3) in cases where data on take of green
sturgeon is available, methods for estimating the total annual take by
a fishery are still being developed. The two DPSs co-inhabit some
coastal areas and bays in Northern California, Oregon, and Washington,
and the proportion of Southern DPS fish contributing to overall
populations in these areas may be high (e.g., 80 percent in the
Columbia River; J. Israel, UC Davis, 2008, unpublished data). Thus,
while we know that fisheries-related take is occurring, we are
uncertain how this take is apportioned between the two DPSs, different
locales, and different types of fisheries.
Green sturgeon are taken as bycatch in white sturgeon fisheries,
salmon gillnet fisheries, coastal groundfish trawl fisheries, and
coastal California halibut set net fisheries (Adams et al., 2006; R.
Rasmussen, NMFS, 2006, unpublished data; J. Ferdinand et al., NMFS,
2006, unpublished data). These fisheries have taken large numbers of
green sturgeon historically and have been cited as factors in the
decline of the species (70 FR 17386, April 6, 2005; 71 FR 17757, April
7, 2006). For example, from 1985 to 1993, the harvest of green sturgeon
in commercial fisheries in the Columbia River and in Washington ranged
from 3,000 to over 7,500 fish per year. Sport fishing harvest during
the same period ranged from less than 100 to over 500 fish, with the
majority harvested from the Columbia River. Since 1993, commercial and
sport harvest of green sturgeon has declined in the Columbia River and
Washington fisheries to about 150 fish harvested in 2003 (Adams et al.
2006).
State recreational and commercial fishing regulations have been
revised in response to evidence of recent sturgeon declines and to the
listing of the Southern DPS. In California, the California Fish and
Game Commission approved revised regulations, effective March 1, 2007,
to prohibit retention of green sturgeon, alter the slot (size) limit
(142 cm) and bag limit (one individual daily; 3 individuals annually)
for white sturgeon, and require implementation of a sturgeon report
card system. Recently, the California Fish and Game Commission approved
revised regulations, effective March 1, 2010, that prohibit all
sturgeon fishing in the upper Sacramento River where southern DPS green
sturgeon spawn. The Washington Fish and Wildlife Commission adopted a
permanent rule to prohibit retention of green sturgeon in recreational
fisheries statewide effective May 1, 2007. In addition, the Washington
Department of Fish and Wildlife and Oregon Department of Fish and
Wildlife voted to prohibit the retention of green sturgeon in Columbia
River recreational fisheries from Bonneville Dam to the mouth of the
river, effective January 1, 2007. For commercial fisheries, the
retention of green sturgeon has been prohibited in the Columbia River
by emergency rule since July 2006 and statewide in Washington by
permanent rule since January 26, 2007. The Oregon Fish and Wildlife
Commission voted to prohibit the retention of green sturgeon in
commercial nearshore fisheries, effective January 1, 2010, and is
prohibiting the retention of green sturgeon in recreational fisheries
statewide, effective April 1, 2010. The State of California has
prohibited commercial fishing for sturgeon since 1917. While these
emergency and permanent rules offer Southern DPS fish protection, it is
unclear whether the state closures will remain in effect over the long-
term and ultimately what overall effect the closures will have on the
Southern DPS.
Commercial groundfish trawl fisheries occurring in coastal waters
along the West Coast of North America take green sturgeon. Fish are
primarily caught as bycatch off the coast of California. Over a 6-year
period, from 2001-2007, 450 green sturgeon were reported as by-catch in
trawls off the California coast. Almost all green sturgeon caught in
this fishery are released alive (J. Majewski, NMFS, 2006, unpublished
data), but the long-term fate of these individuals remains unknown. A
program for monitoring green sturgeon take was established with the
NMFS Observer Program in January 2007 to determine the amount of take,
the DPS of the green sturgeon that are caught (through genetic
analysis), and in the future to address the long-term fate of these
individuals through tagging. Additional measures that may be
implemented to protect green sturgeon and the Southern DPS include zero
retention of green sturgeon in all fisheries, minimizing incidental
catch, monitoring of incidental catch, increased enforcement, fisheries
closures in areas important to the species, and outreach and education
on proper catch and release methods and green sturgeon conservation
issues.
Tribal Fisheries
Green sturgeon are taken as bycatch in tribal salmon and sturgeon
fisheries conducted by the Quinault Tribe in coastal Washington waters.
Tribal harvest of green sturgeon occurs in Grays Harbor and at the
mouth of tributaries, primarily the Chehalis and Humptulips rivers. The
number of green sturgeon taken annually from 1985 to 2003 ranged from
less than 10 to almost 200 fish (Adams et al., 2006). In 2006, the
Quinault Tribe implemented zero retention of green sturgeon for the
Grays Harbor fishery (J. Schumacker, Quinault Indian Tribe, 2006,
personal communication). A large proportion of green sturgeon caught in
Grays Harbor may be Southern DPS fish, based on hydroacoustic tracking
information (Lindley and Moser, 2006) and a genetic study indicating
that approximately 50 percent of green sturgeon sampled in Grays Harbor
belong to the Southern DPS (J. Israel and B. May, UC Davis, 2006,
unpublished data).
Green sturgeon are also taken, though rarely, in tribal commercial
and subsistence salmon fisheries occurring in freshwater and coastal
marine waters of Washington, including the Strait of Juan de Fuca,
Georgia and Rosario straits, and Puget Sound (W. Beattie, NW Indian
Fisheries Commission, 2008, personal communication). The Yurok
[[Page 30719]]
and Hoopa Tribes harvest green sturgeon in the Klamath River in
California, but most of the fish are believed to be Northern DPS green
sturgeon (J. Israel, UC Davis, 2006, unpublished data). Overall, the
take of green sturgeon in tribal fisheries has been low compared to
non-tribal fisheries. Measures that may be implemented to conserve the
Southern DPS include a commitment by the Quinault Tribe, and perhaps
other Tribes within the occupied range of the Southern DPS, to minimize
take and monitor incidental catch of green sturgeon over the long-term.
Poaching
Poaching is a potential threat to the Southern DPS. In recent
years, several arrests have been made for illegal harvest of white
sturgeon for their meat and roe from the Sacramento River (CDFG, 2003
and 2006), the Sacramento-San Joaquin Delta (CDFG, 2004), and the lower
Columbia River (Cohen, 1997). In the lower Columbia River, an estimated
2,000 sturgeon were killed over a 5-year period by poachers to produce
caviar (Cohen, 1997). Poaching may be less significant than incidental
take associated with white sturgeon sportfishing (Williamson, 2003).
However, the tendency for green sturgeon to form aggregations for long
periods of time may make them easy targets for poachers (Erickson et
al., 2002). Increased public outreach and awareness, increased
enforcement, and heavier sentences and fines for poachers may help to
protect green sturgeon from the threats of poaching.
Research and Monitoring Activities
Scientific research and monitoring of the Southern DPS contributes
valuable information for the management, conservation, and future
status reviews of the species. However, collection or handling
associated with scientific research and monitoring constitutes take and
may result in stress, injuries, or mortality of Southern DPS fish. In
recent years, much research and monitoring effort has been placed on:
(1) Tracking the movements and habitat use of Southern DPS fish by
using a variety of non-lethal tagging techniques; and (2) identifying
the DPS of origin using non-lethal genetic sampling techniques. These
two research and monitoring activities provide information crucial to
the development of an effective recovery strategy for the species. The
best available information indicates that these procedures, when done
according to accepted protocols, result in minimal short-term stress to
the fish and do not result in lethal take. Important scientific
information (e.g., genetic, pathologic, taxonomic, meristic) is also
gathered from already dead individuals, thereby providing valuable data
without putting the species at further risk.
Emergency Rescue and Salvage Activities
Emergency fish rescue activities, including aiding sick, injured,
or stranded fish, disposing of dead fish, or salvaging dead fish for
use in scientific studies, are forms of take. Rescue activities would
benefit the Southern DPS in the event of emergency situations that
result from natural disasters, man-made habitat alterations, national
defense activities, security emergencies, etc. Allowing take of the
Southern DPS for emergency rescue and salvage activities is likely to
enhance survival and recovery of the listed species. However, it is
important that measures be taken to investigate emergency events during
or after they have occurred in order to determine whether a non-ESA-
compliant action(s) necessitated the rescue or salvage.
Habitat-Altering Activities
Dams and water diversion structures have caused the elimination,
obstruction, or delay of passage for green sturgeon and other sturgeon
species and may reduce body condition and reproductive success. For
example, dams and water diversion structures have been observed to
obstruct or disrupt the upstream spawning migrations of shortnose
sturgeon in the lower Cape Fear River, NC (Moser and Ross, 1995). White
sturgeon have also been found stranded behind the Fremont Weir in the
Yolo Bypass, CA (Harrell and Sommer, 2006). Disruptions in migration
may cause fish to stop their upstream migration or may delay access to
spawning habitats (Moser and Ross, 1995). The inability to reach
spawning habitats may cause fish to spawn in habitats of lower quality,
resulting in decreased recruitment (Cooke and Leach, 2004). Several
dams and water diversion structures exist along the spawning migration
route of the Southern DPS and would be expected to have detrimental
effects similar to those observed in surrogate species. Fish passage
studies at the Red Bluff Diversion Dam (RBDD) in the Sacramento River
show that the RBDD blocks the upstream migration of the Southern DPS
when the gates are lowered between May 15 and September 15 (Heublein et
al., 2006; Brown, 2007). Mitigation measures have been implemented,
including the raising of RBDD gates from September 15 to June 15 each
year to allow fish passage and the protection and restoration of
spawning and rearing habitat along the Sacramento River, bays, and the
Sacramento-San Joaquin Delta. However, when the gates are raised, green
sturgeon may become disoriented or suffer injuries due to the high
velocity of water passing under the gates (M. Tucker, NMFS, 2007,
personal communication). Between May 18 and June 10, 2007, carcasses of
10 adult Southern DPS fish (168-226 cm total length) were found at
(n=2) or downstream (n=8) of RBDD (E. Campbell, USFWS, 2007,
unpublished data). Locations of the retrieved carcasses and necropsy
results suggest that the fish suffered mortality due to injuries
inflicted by the gates at RBDD. Installation of adequate fish passage
facilities, modification of existing passage facilities, or other
provisions to specifically aid sturgeon passage at dams and diversions,
and application of other mitigation measures, such as salvage
operations, would contribute to the protection of the Southern DPS.
The elimination, obstruction, or delay of downstream passage is a
concern for larval and juvenile stages of the Southern DPS, as are
habitat-altering activities that destroy, modify, or curtail spawning
or rearing habitats for egg, larval, or juvenile stages. Specific
concerns include, but are not limited to: Increased sediment input or
runoff into streams; filling in or isolation of stream channels, side
channels, and intermittent waters; direct removal or alteration of
physical structures; and obstruction of downstream migration.
Increased input or runoff of fine sediments into streams may result
from a number of activities including, but not limited to, mining,
logging, farming, grazing, and bridge and road construction. Increased
erosion and sediment input or runoff into streams caused by land use
and other human activities have been found to reduce the survival and
successful development of eggs and embryos of salmon and other fish
species (Scrivener and Brownlee, 1989; Owen et al., 2005). The effects
on green sturgeon eggs and embryos are likely to be similar. Green
sturgeon eggs are large and dense and likely sink into rock crevices or
attach to hard surfaces (Deng et al., 2002; Kynard et al., 2005). Once
hatched, green sturgeon embryos remain near the bottom and use rocks as
cover (Kynard et al., 2005). Excess fine sediments can compromise
successful development by burying already-deposited eggs, reducing
interstitial dissolved oxygen available for eggs (Scrivener and
Brownlee, 1989), or filling areas used by embryos for cover. Thus,
Southern DPS eggs or embryos
[[Page 30720]]
may be taken due to habitat-altering activities that increase input of
fine sediments or runoff into spawning or rearing habitat. The effect
that increased input of fine sediments or runoff has at the individual,
population and species levels will depend on the temporal and spatial
extent of habitat change. The only way to determine this is to analyze
particular activities on a case-by-case basis.
The filling in or isolation of stream channels, side channels, and
intermittent waters may destroy or block access to rearing habitats, or
impede or delay downstream migration by trapping larvae and juveniles
that have entered these areas. Activities that fill in or isolate
waters include, but are not limited to, the installation of tide gates,
culverts, and debris- or sediment-trapping road crossing structures.
These activities and their effects are a concern for listed salmon and
steelhead and may also affect larval and juvenile Southern DPS fish.
However, we currently lack the information needed to quantitatively
assess these effects. Although relatively large numbers of juveniles
have been collected in shallow areas of the Santa Clara shoal in the
Sacramento-San Joaquin Delta (Radtke, 1966), the use of stream
channels, side channels, and intermittent waters as rearing habitat by
green sturgeon larvae and juveniles has not been documented.
Information regarding the use of these habitats by early life stages of
green sturgeon is needed.
Direct removal or alteration of physical structures essential to
the integrity and function of the Southern DPS's spawning or rearing
habitat, including rocks, soil, gravel, and vegetation, may adversely
affect the growth and survival of larvae and juveniles. Green sturgeon
likely use specific substrate types at different life stages, but
observations of early life stages of green sturgeon in the field are
lacking. Studies suggest that spawning most likely occurs over cobble
substrates that provide crevices and cover for eggs (Kynard et al.,
2005; Nguyen and Crocker, 2006). However, in a laboratory study of
substrate use by post-hatch larval green sturgeon, growth and survival
was greatest in flat slate-rock substrates that provided cover and
sufficient foraging opportunities (Nguyen and Crocker, 2006). Survival
was low in cobble substrates, because larvae became trapped in crevices
and died; whereas in sand substrates, the cause of lower survival and
growth was attributed to the ingestion of sand particles similar in
size to food particles (Nguyen and Crocker, 2006). Juveniles likely use
deep pool habitats with rock structure during the winter (Kynard et
al., 2005). Removal or alteration of these physical structures (i.e.
cobble for spawning and egg development; flat rock for larval rearing;
deep pool habitats with rock structure for juvenile rearing) may reduce
spawning or rearing success rates. Additional studies regarding the use
of spawning habitats by Southern DPS early life stages and the effects
of removing or altering physical components of Southern DPS spawning
habitat on recruitment success are encouraged.
The construction and maintenance of dams and water diversion
structures may impede or delay downstream migration and alter habitats
important to larval and juvenile stages of the Southern DPS. Dams and
water diversions may block downstream migration of larvae and
juveniles, unless fish transport or bypass facilities exist. Passage
across dams and water diversion structures may also disorient or injure
larvae and juveniles and make them more vulnerable to predation, as has
been observed for juvenile salmonids at RBDD (Bigelow and Johnson,
1996; Gaines and Martin, 2002). The actual construction of dams and
water diversion structures may cause increased erosion and
sedimentation and disrupt or alter physical structures in spawning or
rearing habitats, with effects as described in the previous paragraphs.
While existing laws require mining, timber harvest, and other
resource use plans to address erosion and other adverse impacts on
stream habitats, these laws may not be adequate to protect the Southern
DPS. Additional measures that would help reduce potential adverse
impacts on Southern DPS fish are: (1) Protection of riparian habitat by
limiting activities that cause erosion, sediment input or runoff into
streams, or roadway and other linear development near or across
streams; (2) construction of fish protection and passage facilities;
and (3) limiting the temporal and/or spatial scopes of habitat
alteration activities that occur in and near spawning and rearing
locations.
Habitat Restoration
The primary purpose of habitat restoration is to restore natural
aquatic or riparian habitat conditions or processes over the long-term.
Specifically, we define habitat restoration as the process of
reestablishing a self-sustaining habitat that closely resembles natural
conditions in terms of structure and function for the Southern DPS. A
variety of habitat-altering activities such as barrier removal or
modification to restore natural water flows, river and estuarine bed
restoration, natural bank protection, restoration of native vegetation,
removal of non-native species, and removal of contaminated sediments
has been used to reestablish natural river and estuarine functions over
the long-term. Although take of green sturgeon could potentially occur
during the course of completing restoration activities, we do not have
evidence that these types of activities have taken the Southern DPS or
a surrogate species. It is likely that these activities are important
to the conservation and recovery of the Southern DPS.
Entrainment and Impingement Risks
The operation of water diversions, power generating projects, and
dredging activities pose entrainment and impingement threats to all
life stages of the Southern DPS. We define entrainment to mean the
incidental trapping of any life stage of fish within waterways or
structures that carry water being diverted for anthropogenic use. We
define impingement to mean the entrapment of any life stage of fish on
the outer part of any structure (e.g., intake structures, screening
devices) that separates water traveling a natural course of passage
from water that is being diverted for anthropogenic use. Unscreened
water diversions number in the hundreds to thousands in the Sacramento
River and the Sacramento-San Joaquin Delta (Herren and Kawasaki, 2001).
Factors that determine the entrainment risk of fish at diversions
include the location and size of fish. A study of fish entrainment at
an unscreened diversion in the Sacramento River documented entrainment
of fish ranging in size from 9 to 59 mm fork length (FL) in July 2000
and 2001 (Nobriga et al., 2004). Green sturgeon were not among the
species documented in the study, but Southern DPS larvae and small
juveniles within the size range of 9-59 mm FL occur in the Sacramento
River at that time of year and are believed to also be at risk of
entrainment at unscreened diversions. Entrainment of juvenile green
sturgeon has been documented at the state and Federal fish facilities
in the south Sacramento-San Joaquin Delta, where fish are salvaged
before they enter the pumps (Adams et al., 2006). Programs to install
fish screens at water diversions are being implemented and many major
diversions have already been screened. Installation of fish screens,
construction of bypass and other fish protection facilities (Bigelow
and Johnson, 1996; Gaines and Martin, 2002), adjustments
[[Page 30721]]
in the timing of operations, and continuation of fish salvage
operations, where applicable, would help minimize and mitigate
entrainment of Southern DPS fish at water diversions.
Evidence exists for the impingement of green sturgeon in the
operation of coastal power plants using cooling water intake systems,
and there is a possibility that green sturgeon are also entrained at
power plants. Two juvenile green sturgeon were impinged and died on
cooling water intake screens at the now retired Contra Costa Plant
Units 1-5 in 1978-1979 and at the Moss Landing Power Plant in 2006 (C.
Raifsnider and J. Steinbeck, Tenera Environmental, 2006, personal
communication). Current conservation efforts include the installation
of screens to reduce entrainment, studies of fish impingement and
entrainment at power plants, and laws that require the minimization of
fish impingement and entrainment. Other actions that can be taken to
reduce impingement and entrainment include altering the time of day
when water intake pumps are operated, altering the velocity of water
intake, and the use of alternative cooling systems that do not require
water intake.
Dredging operations in freshwater rivers, bays, and estuaries where
Southern DPS fish occur may pose entrainment risk. Although entrainment
of green sturgeon in dredging operations has not been documented, the
effects could be significant. Approximately 2,000 juvenile white
sturgeon were entrained during operation of a large suction dredge in
the lower Columbia River (Buell, 1992). Juvenile green sturgeon would
be expected to face similar entrainment risks from dredging operations
because they are also bottom-oriented and occur in habitats similar to
white sturgeon. Dredging may also be a potential threat to adult green
sturgeon because they occur in areas where dredging operations take
place. Dredging stirs up the sediments causing the release of
contaminants that would have adverse impacts on growth, reproductive
development, and reproductive success of green sturgeon. Long-term
management strategies for San Francisco Bay dredging operations have
established regional environmental work windows, or periods of time
when certain fish species are not likely to be present in a location.
Currently, it is believed that Southern DPS juveniles reside in San
Francisco, Suisun, and San Pablo bays year-round so environmental work
windows will likely not be effective in reducing the risks of dredging
operations to the Southern DPS in these locations (Ganssle, 1966;
Miller, 1972; CDFG, 2002; Jahn, 2006; BDAT, 2009). However, the use of
specific types of dredging equipment with modified designs would reduce
the entrainment risk to Southern DPS fish from dredging operations.
Pesticides and Discharge of Pollutants
The application of pesticides adjacent to or within waterways that
contain any life stage of the Southern DPS may adversely affect their
growth and reproductive success. Several pesticides have been detected
in the Sacramento River Basin at levels that are likely to be harmful
to aquatic life (Domagalski et al., 2000). The accumulation of
industrial chemicals and pesticides such as polychlorinated biphenyls
(PCBs), dichloro-diphenyl-trichloroethanes (DDTs), and chlordanes in
white sturgeon gonad, liver, and muscle tissues affects growth and
reproductive development and results in lower reproductive success
(Fairey et al., 1997; Foster et al., 2001a; Foster et al., 2001b; Kruse
and Scarnecchia, 2002; Feist et al., 2005; Greenfield et al., 2005).
Green sturgeon are believed to experience similar risks from
contaminants, although their exposure may be reduced because a greater
proportion of their subadult and adult lives are spent in marine waters
(70 FR 17386, April 6, 2005). Pesticides may also indirectly affect
green sturgeon through effects on their prey species. For example,
green sturgeon are believed to enter Willapa Bay to feed on burrowing
ghost shrimp (Neotrypaea californiensis), which have declined in
abundance due to the deliberate application of carbaryl (Moser and
Lindley, 2006).
The discharge or dumping of toxic chemicals or other pollutants
into waters and areas where Southern DPS fish occur would be expected
to reduce their growth and reproductive success. Pollutants including
mercury, selenium, and arsenic have been detected in white sturgeon
gonad, liver, and muscle tissues and are believed to affect growth,
reproductive development, and reproductive success (Fairey et al.,
1997; Davis et al., 2002; Kruse and Scarnecchia, 2002; Greenfield et
al., 2005; Webb et al., 2006). Again, the effects on green sturgeon are
likely to be similar.
Under the Federal Clean Water Act, acceptable levels for
contaminants in waterways have been established by the States and the
U.S. Environmental Protection Agency (EPA). Entities must also obtain
National Pollutant Discharge Elimination System (NPDES) permits to
discharge contaminants. However, NPDES permits are not required for
irrigated agriculture and agricultural stormwater runoff. Furthermore,
the national standards for use of pesticides and toxic substances may
not be conservative enough to adequately protect the Southern DPS as
was found for listed salmonids in recent draft and final jeopardy
biological opinions issued by NMFS to the EPA (NMFS 1998, NMFS 2000,
NMFS 2008). Thus, programs to aid agricultural producers in meeting
NMFS-imposed water quality standards may be required to minimize
adverse impacts on the Southern DPS.
Non-Native Species Introductions
Non-native species are a continuing problem in freshwater rivers
and coastal bays and estuaries and may affect the Southern DPS through
trophic interactions. Introduced species, such as striped bass in the
Sacramento River and the Sacramento-San Joaquin Delta, may prey on
green sturgeon juveniles. Non-native species may also replace prey
species of green sturgeon and result in greater bioaccumulation of
contaminants. For example, Potamocorbula amurensis, a non-native
bivalve, has become widespread in the San Francisco Bay and the
Sacramento-San Joaquin Delta and has replaced other common prey items
for white sturgeon. P. amurensis is an efficient bioaccumulator of
selenium, a reproductive toxin that causes deformities in embryos and
reduced hatchability of eggs, and has been linked with increased
selenium levels in white sturgeon (Linville et al., 2002). P. amurensis
has also been identified in the gut contents of at least one green
sturgeon (CDFG, 2002). Non-native species may also alter the Southern
DPS' habitat or compete with the Southern DPS for space or food.
Although existing laws prohibit the release of non-native species into
the environment, accidental and intentional introduction of non-native
species remains a problem. Eradication programs for non-native species,
increased public education and outreach, and increased fines or
penalties for the release of non-native species would help to alleviate
this problem.
4(d) Protective Regulations for the Southern DPS
We apply the prohibitions listed under ESA sections 9(a)(1)(A)
through 9(a)(1)(G) for the Southern DPS, including all the ESA section
9(a)(1)(B) and 9(a)(1)(C) prohibitions (the ``take prohibitions'')
except for specific activities described below (see Exceptions,
Criteria for Exceptions, and
[[Page 30722]]
Reporting Requirements). ESA section 9(a)(1)(A) states that it is
unlawful to import or export endangered species into or from the United
States; ESA section 9(a)(1)(B) states that it is illegal to take
endangered species within the United States or the territorial sea of
the United States; ESA section 9(a)(1)(C) states that it is illegal to
take endangered species upon the high seas; ESA section 9(a)(1)(D)
states that it is illegal to possess, sell, deliver, carry, transport,
or ship, by any means whatsoever, endangered species taken in violation
of 9(a)(1)(B) and 9(a)(1)(C); ESA section 9(a)(1)(E) states that it is
illegal to deliver, receive, carry, transport, or ship in interstate or
foreign commerce by any means whatsoever and in the course of a
commercial activity, endangered species; ESA section 9(a)(1)(F) states
that it is illegal to sell or offer for sale in interstate or foreign
commerce, endangered species; and ESA section 9(a)(1)(G) states that it
is illegal to violate any regulation pertaining to endangered species
or to any threatened species of fish or wildlife listed pursuant to
section 4 of the ESA and promulgated by the Secretary pursuant to
authority provided by the ESA.
These prohibitions are necessary and advisable for the conservation
of the Southern DPS because human ``take'' via activities including,
but not limited to, detrimental habitat alteration, modification, and
curtailment; fisheries catch and bycatch; application of pesticides,
toxic chemicals, or other pollutants adjacent to or within waterways;
entrainment or impingement of eggs or fish during water diversion
operations, dredging, or power generation; unnecessary collection or
handling; and introduction of non-native species that disrupt trophic
pathways, has contributed to the decline of the Southern DPS and is
likely to impede its conservation and recovery. Evaluation of
activities that may occur throughout the area affected by the
prohibitions for Southern DPS fish, eggs or larvae is shown in Table 1.
Exceptions, Criteria for Exceptions, and Reporting Requirements
We establish exceptions to the ESA section 9(a)(1)(B) and
9(a)(1)(C) prohibitions (the ``take prohibitions'') for specific
activities. These exceptions encompass specific activities that may be
excluded from the take prohibitions for the Southern DPS through the
relatively informal coordination process described below. In
determining that it is necessary and advisable to not impose take
prohibitions on certain activities, we are mindful that new information
may require a reevaluation of that conclusion at any time. For any of
the exceptions to the take prohibitions described below, we would
evaluate on a regular basis the effectiveness of the activities in
conserving and protecting the Southern DPS. If the activities are not
effective in conserving and protecting the Southern DPS, we would
identify ways in which the activities need to be altered or
strengthened. For habitat-related exceptions to the take prohibitions,
changes may be required if the activities are not achieving desired
habitat functionality or the habitat is not supporting population
productivity levels needed to conserve the Southern DPS. If the agency
or entity carrying out the activity does not make changes to respond
adequately to the new information, we would publish notification in the
Federal Register announcing the intention to impose take prohibitions
on those activities. Such an announcement would provide for a comment
period of not less than 30 days, after which we would make a final
determination whether to extend the ESA section 9(a)(1)(B) and (C) take
prohibitions to the activities. If the activities do not meet the
exception criteria any take must be covered under an ESA section 7
incidental take statement (i.e. for activities with a Federal nexus) or
ESA section 10(a)(1)(B) incidental take permit. The take of the
Southern DPS will not be prohibited during the course of the following
activities:
(1) Federal, state, or private-sponsored research or monitoring
activities if they adhere to all of the following: (a) The activity
must comply with required state reviews or permits; (b) the research or
monitoring activity must be directed at the Southern DPS and not be
incidental to research or monitoring of another species; (c) take of
live mature adults in the lower Feather River from the confluence with
the Sacramento River to the Oroville Dam (rkm 116), the lower Yuba
River from the confluence with the Feather River to the Daguerre Dam
(rkm 19), or Suisun, San Pablo, and San Francisco Bays or the
Sacramento-San Joaquin Delta from the Golden Gate Bridge up into the
Sacramento River to Keswick Dam (rkm 483) may only occur from July 1
through March 1 so as to substantially increase the likelihood that
uninterrupted upstream spawning migrations of adults will occur; (d)
take must be non-lethal; (e) take involving the removal of any life
stage of the Southern DPS from the wild must not exceed 60 minutes; (f)
take must not involve artificial spawning or enhancement activities;
(g) a description of the study objectives and justification, a summary
of the study design and methodology, estimates of the total non-lethal
take of Southern DPS fish anticipated, estimates of incidental take of
other ESA listed species anticipated and proof that those takes have
been authorized by NMFS or the USFWS, identification of funding
sources, and a point of contact must be reported to the NMFS Southwest
Regional Office (see ADDRESSES: above) at least 60 days prior to the
start of the study, or, for ongoing studies, by August 31, 2010; (h)
reports that include the total number of Southern DPS and any other ESA
listed species taken, information that supports that take was non-
lethal, and a summary of the project results must be submitted to NMFS
on a schedule to be determined by NMFS staff; (i) research or
monitoring that involves action, permitting, or funding by a Federal
agency must still comply with the requirements of ESA section 7(a)(2)
in order to ensure that the action will not jeopardize the continued
existence of the threatened Southern DPS. NMFS will respond in a letter
either confirming the activities meet the exception criteria or stating
that the activities do not meet the exception criteria and are subject
to the take prohibitions. The letter would acknowledge receipt of the
project information and provide the schedule for submission of
research/progress reports and technical assistance to clarify when the
ESA section 9 prohibitions apply.
(2) Emergency fish rescue and salvage activities that include
aiding sick, injured, or stranded fish, disposing of dead fish, or
salvaging dead fish for use in scientific studies, if they adhere to
all of the following: (a) The activity must comply with required state
or other Federal reviews or permits; (b) activities may only be
conducted by an employee or designee of NMFS or the U.S. Fish and
Wildlife Service (USFWS), any Federal land management agency, or
California Department of Fish and Game (CDFG), Oregon Department of
Fish and Wildlife (ODFW), Washington Department of Fish and Wildlife
(WDFW), or Alaska Department of Fish and Game (ADFG); (c) the emergency
rescue must benefit the Southern DPS; (d) a report must be submitted to
the NMFS Southwest Regional Office (see ADDRESSES: above) that
includes, at a minimum, the number and status of fish handled, the
location of rescue and/or salvage operations and the potential cause(s)
of the emergency situation within 10 business days after carrying out
the rescue.
(3) Habitat restoration activities, including barrier removal or
[[Page 30723]]
modification to restore water flows, riverine or estuarine bed
restoration, natural bank stabilization, restoration of native
vegetation, removal of non-native species, or removal of contaminated
sediments, that reestablish self-sustaining habitats for the Southern
DPS, if they adhere to all of the following: (a) Compliance with
required state and Federal reviews and permits; (b) a detailed
description of the restoration activity sent to the NMFS Southwest
Regional Office (see ADDRESSES: above) at least 60 days prior to the
start of the restoration project, or, for ongoing studies, by August
31, 2010, which includes: the geographic area affected; when activities
will occur; how they will be conducted; and the severity of direct,
indirect, and cumulative impacts of activities on the Southern DPS;
identification of funding sources; demonstration that all state and
Federal regulatory requirements have been met; a description of methods
used to ensure that the likelihood of survival or recovery of the
listed species is not reduced; a plan for minimizing and mitigating any
adverse impacts to Southern DPS spawning or rearing habitat; an
estimate of the amount of incidental take of the listed species that
may occur and a description of how that estimate was made; a plan for
effective monitoring and adaptive management; a pledge to use best
available science and technology when conducting restoration
activities; and a point of contact; (c) progress reports that include
the total number of Southern DPS fish taken, information regarding
whether the take was lethal or non-lethal, a summary of the status of
the project, and any changes in the methods being employed, must be
submitted to NMFS on a schedule to be determined by NMFS staff; (d)
activities that involve action, permitting, or funding by a Federal
agency must still comply with the requirements of ESA section 7(a)(2)
in order to ensure that the action will not jeopardize the continued
existence of the threatened Southern DPS. NMFS will respond in a letter
either confirming the activities meet the exception criteria and are
not subject to the take prohibitions, or stating that the activities do
not meet the exception criteria and are subject to the take
prohibitions and any take must be covered under an ESA section 7
incidental take statement or ESA section 10 permit. The letter would
also provide the schedule for submission of progress reports and would
provide technical assistance to clarify when the ESA section 9
prohibitions apply.
Exemptions Provided by NMFS-approved ESA 4(d) Programs
We provide exemptions from the take prohibitions for certain
activities included within a NMFS-approved 4(d) program. Activities
included in a 4(d) program would be excused from the take prohibitions
for the Southern DPS through a formal NMFS 4(d) program approval
process described below.
4(d) Program for Commercial and Recreational Fishery Management
Take of green sturgeon in commercial and recreational fisheries
activities would be allowed if fisheries activities were conducted
under approved Fisheries Management and Evaluation Plans (FMEPs). We
expect that, in many cases, fisheries will have acceptably small
impacts on the threatened Southern DPS as long as state fishery
management programs are specifically tailored to meet certain criteria.
NMFS-approved FMEPs must address limiting take of green sturgeon in
order to protect the listed entity, the Southern DPS. We consider this
necessary because discrimination between the non-listed Northern DPS
and listed Southern DPS, via gear specificity, visual indicators,
spatial distribution, etc., is not currently possible. In order for
NMFS to exempt commercial or recreational fishing activities from the
take prohibitions, an FMEP must: (1) Prohibit retention of green
sturgeon (i.e., zero bag limit); (2) set maximum incidental take
levels; (3) include measures to minimize incidental take of green
sturgeon (e.g., temporal/spatial restrictions, size, gear); (4) provide
a biologically based rationale demonstrating that the incidental take
management strategy will not significantly reduce the likelihood of
survival or recovery of the Southern DPS; (5) include effective
monitoring and evaluation plans; (6) provide for evaluating monitoring
data and making revisions to the FMEP; (7) provide for effective
enforcement and education; (8) provide a timeframe for FMEP
implementation; and (9) report the amount of incidental take and
summarize the effectiveness of the FMEP to NMFS on a biannual basis. If
we find that an FMEP meets these criteria, we will issue a letter of
concurrence to the entity that sets forth the terms of the FMEP's
implementation and the duties of the parties pursuant to the FMEP.
Section 9(a)(1)(B) and (a)(1)(C) take prohibitions would not apply
to ongoing commercial and recreational fisheries activities until
September 30, 2010 if a letter of intent to develop an FMEP addressing
green sturgeon has been received by the NMFS Southwest Regional Office
(see ADDRESSES: above) by July 2, 2010. The exemption will be suspended
if the letter of intent is rejected without further review of an FMEP.
If the letter of intent is received July 2, 2010, a draft FMEP must be
received by NMFS within 6 months from the date of receipt of the letter
of intent. A final FMEP must be received by NMFS within 3 months from
the date of receipt of NMFS' comments on the draft FMEP. Ongoing
commercial and recreational fisheries activities may continue until
NMFS issues a letter of concurrence (or denial) for final FMEPs.
Once a final FMEP has been submitted to NMFS for review, NMFS will:
(1) Provide a public comment period (>=30 days) before approval of new
or amended FMEPs; (2) provide a letter of concurrence for approved
FMEPs that specifies the implementation and reporting requirements; (3)
evaluate FMEPs every 5 years and identify changes that would improve
their effectiveness; and (4) provide a public comment period (>=30
days) before withdrawing approval of an FMEP.
4(d) Program for Tribal Fishery Management
Fishery harvest or other activities conducted by a tribe, tribal
member, tribal permittee, tribal employee, or tribal agent in Willapa
Bay, WA, Grays Harbor, WA, Coos Bay, OR, Winchester Bay, OR, Humboldt
Bay, CA, and any other area where tribal treaty fishing occurs are
eligible to obtain take authorization via the same method outlined in
the NMFS final rule for authorizing take of threatened salmon and
steelhead for actions under tribal resource management plans (July 10,
2000; 65 FR 42481). This method has been modified below for the
Southern DPS. We consider current tribal fishing activities to have
acceptably small impacts on the threatened Southern DPS, and if the
tribes, either singly or jointly, develop tribal resource management
plans for the Southern DPS, or incorporate the Southern DPS into
existing tribal resource management plans, that current and future
tribal activities are not likely to appreciably reduce the likelihood
of survival and recovery of the species.
A tribe intending to exercise a tribal right to fish or undertake
other resource management actions that may impact the threatened
Southern DPS could create a tribal resource management plan (Tribal
Plan) that would assure that those actions would not appreciably reduce
the likelihood of survival and recovery of the species. Tribal Plans
[[Page 30724]]
should be sent to the NMFS Southwest Regional Office (see ADDRESSES).
NMFS would stand ready to the maximum extent practicable to provide
technical assistance to any tribe that so requests in examining impacts
on the listed Southern DPS and in the development of Tribal Plans that
meet tribal management responsibilities and needs. In making a
determination whether a Tribal Plan will appreciably reduce the
likelihood of survival and recovery of the threatened Southern DPS, the
Secretary, in consultation with the tribe, would use the best available
scientific and commercial data (including careful consideration of any
tribal data and analysis) to determine the Tribal Plan's impact on the
biological requirements of the species. The Secretary would also assess
the effect of the Tribal Plan on survival and recovery in a manner
consistent with tribal rights and trust responsibilities. Before making
a final determination, the Secretary would seek comment from the public
on his pending determination whether implementation of a Tribal Plan
will appreciably reduce the likelihood of survival and recovery of the
listed Southern DPS. The Secretary would publish notification in the
Federal Register of any determination regarding a Tribal Plan and the
basis for that determination.
4(d) Program for Scientific Research and Monitoring Activities
State-coordinated research activities for scientific research or
enhancement purposes that do not fall into the exception category
described above (see Exceptions, Criteria for Exceptions, and Reporting
Requirements) may receive an exemption from the take prohibitions for
the Southern DPS for activities included in a state-sponsored, ESA-
compliant, scientific research program between state fishery agencies
(i.e., CDFG, ODFW, WDFW, or ADFG) and NMFS, hereafter referred to as a
state 4(d) research program. Activities conducted as part of a state
4(d) research program must meet existing state and Federal laws and
regulations and would include research and monitoring projects
conducted by state employees or by recipients of state fishery agency-
issued permits (including Federal and non-Federal entities) that
directly or incidentally take Southern DPS green sturgeon. We find that
in carrying out their responsibilities to manage state fisheries, state
agencies conduct or sponsor research vital for improving our
understanding of the status and risks facing the Southern DPS and other
listed species that occur in overlapping habitat, and provide critical
information for assessing the effectiveness of current and future
management practices.
State 4(d) research programs have been developed and implemented in
California, Oregon, and Washington for listed West coast salmon and
steelhead and are consistent with ESA requirements for research-related
take of these listed species. The Southern DPS would most likely be
incorporated into the existing state 4(d) research programs established
for listed salmon and steelhead, making use of the system already in
place. Otherwise, the state would be required to prepare a program and
submit it to the NMFS Southwest Regional Office (see ADDRESSES: above)
for approval. NMFS may approve the program or return the program to the
state agency for revision.
In general, we conclude that as long as state biologists and
cooperating agencies carefully consider the benefits and risks of
activities included in a state 4(d) research program, such programs
would help streamline the take authorization process for researchers,
state agencies, and NMFS by allowing state fishery agencies to maintain
primary responsibility for coordination and oversight of research
activities. Each year, researchers would be required to submit research
applications to the state fishery agency preferably through the NMFS
online application Web site Authorizations and Permits for Protected
Species (APPS) at https://apps.nmfs.noaa.gov. Research applications
must include, at a minimum, the following information: (1) An estimate
of the total direct or incidental take of Southern DPS fish that is
anticipated; (2) a description of the study design and methodology; (3)
a justification for take of Southern DPS fish and the techniques to be
used; and (4) a point of contact. The state agency would have access,
via NMFS, to the submitted applications, evaluate and determine which
projects are eligible for inclusion under the program, and approve or
deny individual project applications. Once the state agency review is
complete, the state agency would be required to provide for NMFS'
review and approval a list of project applications approved for
possible inclusion in a 4(d) research program for the coming year.
After our review of the applications and follow-ups with the
researchers to address concerns if necessary, we would analyze effects
of the activities on the Southern DPS. Finally, we would complete the
ESA section 7 consultation and NEPA documentation and issue an approval
letter to the state fishery agency confirming that the research
activities covered within the 4(d) research program are exempt from the
ESA take prohibitions. A section 10(a)(1)(A) research or enhancement
permit is not issued. Researchers have to comply with the conditions of
the 4(d) research program and must submit an annual report, preferably
through the NMFS online application Web site Authorizations and Permits
for Protected Species (APPS) at https://apps.nmfs.noaa.gov. The annual
report must include, for each project: (1) a summary of the number of
green sturgeon taken directly or incidentally; and (2) a summary of the
results of the project, in order for NMFS to evaluate the effects of
the research project on the Southern DPS. We would continue to work
with the state fishery agencies to ensure authorized research involving
listed Southern DPS fish is both coordinated and conducted in a manner
that does not jeopardize the conservation and recovery of the Southern
DPS.
Section 9(a)(1)(B) and 9(a)(1)(C) take prohibitions would not apply
to ongoing state-supported scientific research and enhancement
activities seeking take authorization of the Southern DPS fish through
a state 4(d) program, if the above information is provided to NMFS,
preferably through the NMFS online application Web site Authorizations
and Permits for Protected Species (APPS) at https://apps.nmfs.noaa.gov,
during the mid-September through mid-October 2010 application period.
The take prohibitions would take effect if the state 4(d) program
package is rejected as insufficient or is denied. If the state 4(d)
research program package is received during the mid-September to mid-
October application period, ongoing state-supported scientific research
activities may continue until NMFS issues a written decision of
approval or denial. If approved, the state 4(d) program authorization
will cover one calendar year and state supported researchers would have
to renew authorizations annually during subsequent application periods.
Take Exemptions Provided By ESA Sections 7 or 10
Federally funded, authorized, or implemented activities that may
require take coverage (see Proposed 4(d) Protective Regulations for the
Southern DPS), and are not covered under Exceptions, Criteria for
Exceptions, and Reporting Requirements or Exemptions Provided by NMFS-
approved 4(d) Programs above, will be examined on a case-by-case basis
through interagency consultation as prescribed by ESA section 7. All
other activities (i.e., those
[[Page 30725]]
not federally funded, authorized, or implemented) that may require take
coverage, and are not covered under Exceptions, Criteria for
Exceptions, and Reporting Requirements or Exemptions Provided by NMFS-
approved 4(d) Programs above, will be examined on a case-by-case basis
as prescribed by ESA section 10.
Federal, state, and private-sponsored research activities for
scientific research or enhancement purposes that are not covered under
Exceptions, Criteria for Exceptions, and Reporting Requirements or
Exemptions Provided by NMFS-approved 4(d) Programs above, may take
Southern DPS fish pursuant to the specifications of an ESA section 10
permit. Section 9(a)(1)(B) and (a)(1)(C) take prohibitions would not
apply to ongoing research activities if an application for an ESA
section 10 (a)(1)(A) permit is received by NMFS, preferably through the
NMFS online application Web site https://apps.nmfs.noaa.gov, no later
than November 29, 2010. The take prohibitions would take effect if the
permit application is rejected as insufficient or a permit is denied.
If the permit application is received by November 29, 2010, ongoing
research activities may continue without take prohibitions until NMFS
issues or denies a permit.
Evaluation of activities that may occur throughout the area
affected by the prohibitions for Southern DPS fish, eggs, or larvae is
shown in Table 1. Evidence of take of the Southern DPS during the
course of an activity is indicated; if there is no such evidence, then
evidence of take of a surrogate species is indicated. Existence of
protective/conservation measures to minimize take of or benefit the
Southern DPS fish during the course of the activity as it is currently
conducted is indicated. Based on best available information, whether an
activity requires take authorization or is illegal according to other
laws and therefore cannot be authorized is indicated, and whether
methods for allowing take resulting from a particular activity exist
through ESA sections 7 or 10 or through an ESA section 4(d) Program is
specified. This is not an exhaustive list of all activities that occur
throughout the area affected by the take prohibitions. Please see 4(d)
Protective Regulations for the Southern DPS for the full range of
activities for which NMFS is prohibiting take.
Table 1. This table indicates whether evidence of take of the
Southern DPS or take of a surrogate species exist (yes or no; Y or N)
and whether protective/conservation measures to minimize take are
currently in place (Y or N). The table also indicates whether under
this rule an activity requires take authorization (Y or N), or cannot
be authorized (N/A), and whether methods that allow take exist through
ESA sections 7 or 10 (Y or N) or through an ESA section 4(d) program (Y
or N)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Protective/ Methods of take authorization
Take of Conservation Take ---------------------------------
Activity Take surrogate measures or authorization ESA section 7
species benefits necessary or 10 4(d) Program
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fishing
Commercial.................................... Y ............... Y Y Y Y
Recreational.................................. Y ............... Y Y Y Y
Tribal........................................ Y ............... Y Y Y Y
Poaching.......................................... N Y N N/A N N
Collection or Handling ............... ............... ............... ............... ............... ...............
Research/monitoring ............... ............... ............... ............... ............... ...............
Federal, State or Private-sponsored Y ............... Y N ............... ...............
(compliant with Exceptions)..............
State-sponsored (outside scope of Y ............... Y Y Y Y
Exceptions)..............................
Federal or Private-sponsored (outside Y ............... Y Y Y N
scope of Exceptions).....................
Emergency Rescue (compliant with Exceptions).. N Y Y N ............... ...............
Emergency Rescue (outside scope of Exceptions) N Y N Y Y N
Detrimental Habitat-Altering Activities
Activities that Eliminate, Obstruct, or Delay
Passage
Dam installation, repair, modification, Y ............... Y Y Y N
operation................................
Diversion installation, repair, Y ............... Y Y Y N
modification, operation..................
Activities that Destroy, Modify, or Curtail
Spawning or Rearing Habitat
Input of fine sediments/runoff............ N Y Y Y Y N
Dam installation, repair, modification, Y ............... Y Y Y N
operation................................
Diversion installation, repair, Y ............... Y Y Y N
modification, operation..................
Filling/isolation of channels/intermittent N N Y Y Y N
waters...................................
Removal/alteration of physical structure N N Y Y Y N
that provides spawning/rearing habitat...
Habitat Restoration (compliant with Exceptions)
Barrier removal/modification to restore flows. N N Y N ............... ...............
[[Page 30726]]
Riverine or estuarine bed restoration......... N N Y N ............... ...............
Natural bank protection....................... N N Y N ............... ...............
Restoration of native vegetation.............. N N Y N ............... ...............
Removal of non-native species................. N N Y N ............... ...............
Removal of contaminated sediments............. N N Y N ............... ...............
Habitat Restoration (outside scope of Exceptions). N N N Y Y N
Entrainment/Impingement
Water diversions.............................. Y ............... Y Y Y N
Power generating projects..................... Y ............... Y Y Y N
Dredging...................................... N Y Y Y Y N
Pesticide/Pollutant Discharge..................... N Y Y Y Y N
Non-native Species Introductions.................. N Y Y N/A N N
--------------------------------------------------------------------------------------------------------------------------------------------------------
Under section 9(b)(1) of the ESA, people holding Southern DPS fish
in captivity or in a controlled environment prior to the ESA listing
are exempt from the prohibitions of section 9(a)(1)(A) and (a)(1)(G) of
the ESA and would therefore also be exempt from the prohibitions of
this regulation, provided that holding and any subsequent holding or
use of the fish is not for commercial activity. The burden of proof
that Southern DPS fish were taken prior to listing lies with the
individual holding the animals. The prohibitions of this regulation
would, however, apply to any progeny of Southern DPS fish taken prior
to listing. Any activity involving Southern DPS fish taken pre-listing
that is authorized, funded, or carried out by a Federal agency would
also be subject to the consultation requirements of section 7 of the
ESA.
We apply the section 9 take prohibitions to the Southern DPS, while
providing exceptions for some activities (i.e., some types of research/
monitoring, enforcement, emergency rescue/salvage, and habitat
restoration; see Exceptions, Criteria for Exceptions, and Reporting
Requirements) that NMFS finds will not impede, and in most cases will
promote, the conservation of the species. However, if the activity is
federally funded, authorized, or implemented, it will still be subject
to NMFS' review under the ESA jeopardy standard (i.e., ESA section
7(a)(2)). Apart from the subset of activities defined in ``Exceptions,
Criteria for Exceptions, and Reporting Requirements'' above, if the
Southern DPS is anticipated to be taken during the course of an
activity, several methods may be pursued to obtain take authorization
depending on the specific circumstances of the activity. For federally
funded, authorized, or implemented activities, the traditional method
of seeking take coverage is through ESA section 7. For activities that
are not federally funded, authorized, or implemented, take
authorization may be obtained through ESA section 10, by establishing a
NMFS-approved 4(d) program (i.e., for commercial or recreational
fishing activities or state-sponsored research outside the scope of
those activities defined in Exceptions, Criteria for Exceptions, and
Reporting Requirements) that adequately protects the Southern DPS, or
by developing a tribal resource management plan that will not
appreciably reduce the likelihood of survival and recovery of the
Southern DPS (see Exemptions Provided by NMFS-approved ESA 4(d)
Programs). Take of the Southern DPS due to poaching and non-native
species introductions is illegal according to existing state and/or
Federal laws, thus no method of take authorization is being provided
for these activities.
Peer Review
In December 2004, the Office of Management and Budget (OMB) issued
a Final Information Quality Bulletin for Peer Review (Peer Review
Bulletin) establishing minimum peer review standards, a transparent
process for public disclosure, and opportunities for public input. The
Peer Review Bulletin, implemented under the Information Quality Act
(Pub. L. 106 554), is intended to provide public oversight on the
quality of agency information, analyses, and regulatory activities. The
text of the Peer Review Bulletin was published in the Federal Register
on January 14, 2005 (70 FR 2664). The Peer Review Bulletin requires
Federal agencies to subject ``influential'' scientific information to
peer review prior to public dissemination. Influential scientific
information is defined as ``information the agency reasonably can
determine will have or does have a clear and substantial impact on
important public policies or private sector decisions,'' and the Peer
Review Bulletin provides agencies broad discretion in determining the
appropriate process and level of peer review. The Peer Review Bulletin
establishes stricter standards for the peer review of ``highly
influential'' scientific assessments, defined as information whose
``dissemination could have a potential impact of more than $500 million
in any one year on either the public or private sector or that the
dissemination is novel, controversial, or precedent-setting, or has
significant interagency interest.'' We do not consider the scientific
information underlying the protective regulations to constitute
influential scientific information as defined in the Peer Review
Bulletin. The information is not novel; similar information for listed
salmonids whose range substantially overlaps with that of the Southern
DPS has been used in support of protective regulations that have been
in existence for a number of years. Therefore the agency expects the
information to be non-controversial and have minimal impacts on
important public policies or private sector decisions.
References
A complete list of the references used in this final rule is
available upon request (see ADDRESSES) or via the Internet at http://www.swr.noaa.gov.
Classification
Regulatory Flexibility Act
This final ESA 4(d) rule has specific requirements for regulatory
compliance and sets an enforceable performance standard (do not take
listed fish) when conducting specific activities unless those
activities are within a carefully circumscribed set of activities on
which NMFS will not impose the take prohibitions. Hence, the universe
of entities reasonably expected to be
[[Page 30727]]
directly or indirectly impacted by the prohibition is broad.
Based on the language of the 4(d) rule, as well as a review of
existing section 7 consultations for the Southern DPS of green sturgeon
and co-existing salmon and steelhead species, the FRFA identified the
following activities that may be affected by this final rule:
commercial, recreational and tribal fisheries; dams and water
diversions; power production (electric services and gas distribution);
crop agriculture and point source polluters (NPDES-permitted
activities); habitat-altering activities; and in-water construction and
dredging activities. A great deal of uncertainty exists with regard to
how potentially regulated entities will attempt to avoid take of the
Southern DPS. This is caused by two factors: relatively little data
exist on green sturgeon abundance and behavior, and NMFS has a short
history of managing the Southern DPS. In addition, the spatial
distribution of the Southern DPS overlaps nearly entirely with habitat
for salmon and steelhead species. Several key variables, such as
whether current fish passage facilities and fish screens designed to
protect salmon species will be considered adequate to provide passage
for the Southern DPS over the long term, remain undetermined at this
time. Thus, while baseline protections are expected to be afforded to
the Southern DPS on behalf of salmon and steelhead species, the degree
to which incremental measures would be required for the Southern DPS
has not been determined. As such, the FRFA does not provide estimates
of total costs of conservation measures likely to be undertaken for the
Southern DPS. Instead, the analysis characterizes potential impacts on
affected industries.
In formulating this rule, we considered five alternative
approaches, described in more detail in the FRFA. These are: (1) A No
Action Alternative where no ESA section 9(a)(1) prohibitions or any
other protective regulations are applied to the Southern DPS; (2) a
Full Action Alternative where all ESA section 9(a)(1) prohibitions are
applied to the Southern DPS; (3) Alternative A where the prohibitions
listed under ESA section 9(a)(1)(A) and 9(a)(1)(D) through 9(a)(1)(G)
are applied to the Southern DPS and the take prohibitions (ESA section
9(a)(1)(B) and 9(a)(1)(C)) are applied to specific categories of
activities that either cause take of Southern DPS fish; (4) Alternative
B (Proposed Action) where ESA section 9(a)(1) prohibitions are applied
to the Southern DPS as in the Full Action Alternative, but with
exceptions and exemptions for activities that NMFS has determined to be
adequately protective of the Southern DPS; and (5) Alternative C where
the ESA section 9(a)(1) prohibitions are applied as described in
Alternative A, but with exceptions from the take prohibitions (ESA
section 9(a)(1)(B) and 9(a)(1)(C)) for activities that NMFS has
determined to be adequately protective of the Southern DPS.
The comparative analysis of the alternatives is described in more
detail in the FRFA. In summary, the Full Action Alternative and
Alternative B (Proposed Action) are anticipated to affect the largest
number of industries, but the impacts Alternative B will have on those
industries is expected to be less severe because certain activities may
be allowed to continue (e.g., some habitat restoration, emergency
rescue, and research/monitoring activities) under this alternative.
Alternatives A and C are anticipated to affect a smaller number of
industries than the Full Action Alternative and Alternative B. For
reasons similar to those explained above, Alternative C is expected to
have a less severe impact on the affected industries than Alternative
A.--The No Action Alternative will have no effect on industries.
Executive Order (E.O.) 12866--Regulatory Planning and Review
This rule has been determined to be not significant for the
purposes of E.O. 12866.
E.O. 12988--Civil Justice Reform
We have determined that this final rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of E.O. 12988. We are providing protective regulations pursuant to
provisions in the ESA using an existing approach that improves the
clarity of the regulations and minimizes the regulatory burden of
managing ESA listings while retaining the necessary and advisable
protections to provide for the conservation of threatened species.
E.O. 13175--Consultation and Coordination with Indian Tribal
Governments
E.O. 13175 requires that, if NMFS issues a regulation that
significantly or uniquely affects the communities of Indian tribal
governments and imposes substantial direct compliance costs on those
communities, NMFS must consult with those governments, or the Federal
Government must provide the funds necessary to pay the direct
compliance costs incurred by the tribal governments. This rule may
impose substantial direct compliance costs on the communities of Indian
tribal governments within the range of this DPS. Accordingly, the
requirements of section 5(b) and (c) of E.O. 13175 may apply to this
rule. During the development of the proposed and final rules, we
provided drafts of relevant sections of the 4(d) Rule to potentially
affected tribes and held conference calls with potentially affected
tribes to discuss the 4(d) Rule and obtain the tribes' input.
E.O. 13132--Federalism
E.O. 13132 requires agencies to take into account any federalism
impacts of regulations under development. It includes specific
consultation directives for situations where a regulation will preempt
state law, or impose substantial direct compliance costs on state and
local governments (unless required by statute). Neither of those
circumstances is applicable to this rule. In fact, this notice provides
mechanisms by which NMFS, in the form of 4(d) exceptions to take
prohibitions, may defer to state and local governments where they
provide necessary protections for the Southern DPS. Even though this
rule does not have federalism implications, we requested information
from appropriate State resource agencies in California, Oregon, and
Washington regarding the proposed action. As subsequent issues with ESA
compliance and rulemaking arise (e.g., issuance of permits, critical
habitat designation, recovery planning), we will continue to
communicate with the States, and other affected local or regional
entities, giving careful consideration to all concerns and comments
received.
Paperwork Reduction Act (PRA)
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid Office of Management and Budget (OMB) Control Number.
This final rule contains collection-of-information requirements
subject to the PRA, which have been submitted to OMB for review and
approval. Public reporting burden per response for this collection of
information is estimated to average: (1) 40 hours for development of a
Fisheries Management and Evaluation Plan; (2) 20 hours for development
of a Tribal Fishery Management Plan; (3) 40 hours for development of a
State-sponsored scientific research program; (4) 5 hours to prepare
reports on emergency rescue, salvage, or disposal of Southern DPS fish;
(5) 40 hours to prepare reports on restoration activities;
[[Page 30728]]
and (6) 40 hours to prepare reports on Federal and private-sponsored
research and monitoring. These estimates include the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. We invite comments regarding these burden
estimates, or any other aspect of this data collection, including
suggestions for reducing the burden, to NMFS (see ADDRESSES) and to OMB
at the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503 (Attention: NOAA Desk
Officer).
National Environmental Policy Act (NEPA)
Whenever a species is listed as threatened, the ESA requires that
we shall issue such regulations as we deem necessary and advisable to
provide for its conservation. Accordingly, the promulgation of ESA
section 4(d) protective regulations is subject to the requirements of
NEPA, and we have prepared a final Environmental Assessment (EA)
analyzing the 4(d) regulations and alternatives. The EA is available
upon request (see ADDRESSES), via our Web site at http://swr.nmfs.noaa.gov, or via the Federal eRulemaking Web site at http://www.regulations.gov.
E.O. 13211--Energy Supply, Distribution, or Use
E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. According to E.O. 13211,
``significant energy action'' means any action by an agency that is
expected to lead to the promulgation of a final rule or regulation that
is a significant regulatory action under E.O. 12866 and is likely to
have a significant adverse effect on the supply, distribution, or use
of energy. NMFS has determined that this rule is not a significant
energy action. First, this rule is not significant under E.O. 12866.
Second, this rule would not be likely to result in significant adverse
effects on the supply, distribution, or use of energy, because the
spatial scope of this rule overlaps with areas where protections for
ESA-listed salmonids are in effect and it is likely that the
modifications required for ESA-listed salmonids are similar to those
that would be required for the Southern DPS. Thus, no Statement of
Energy Effects is required for this rule.
List of Subjects in 50 CFR Part 223
Endangered and threatened species, Exports, Imports,
Transportation.
Dated: May 25, 2010.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, 50 CFR part 223 is amended as
follows:
PART 223--THREATENED MARINE AND ANADROMOUS SPECIES
0
1. The authority citation for part 223 continues to read as follows:
Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202
also issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for
Sec. 223.206(d)(9).
0
2. In subpart B of part 223, add Sec. 223.210 to read as follows:
Sec. 223.210 North American green sturgeon.
(a) Prohibitions. The prohibitions of section 9(a)(1)(A) through
9(a)(1)(G) of the ESA (16 U.S.C. 1538) relating to endangered species
apply to the threatened Southern Distinct Population Segment (DPS) of
North American green sturgeon listed in Sec. 223.102(c)(1).
(b) Exceptions. Exceptions to the take prohibitions described in
section 9(a)(1)(B) and (C) of the ESA (16 U.S.C. 1538(a)(1)(B) and (C))
applied in paragraph (a) of this section to the threatened Southern DPS
listed in section 223.102(c) are described in the following paragraphs
(b)(1) through (b)(3).
(1) Scientific Research and Monitoring Exceptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102(c)(1) do not apply to ongoing or future
Federal, state, or private-sponsored scientific research or monitoring
activities if:
(i) The scientific research or monitoring activity complies with
required state reviews or permits;
(ii) The research or monitoring activity is directed at the
Southern DPS and is not incidental to research or monitoring of another
species;
(iii) Take of live mature adults in the lower Feather River from
the confluence with the Sacramento River to the Oroville Dam (rkm 116),
the lower Yuba River from the confluence with the Feather River to the
Daguerre Dam (rkm 19), or Suisun, San Pablo, and San Francisco Bays or
the Sacramento-San Joaquin Delta from the Golden Gate Bridge up into
the Sacramento River to Keswick Dam (rkm 483) occurs from July 1
through March 1 so as to substantially increase the likelihood that
uninterrupted upstream spawning migrations of adults will occur;
(iv) Take is non-lethal;
(v) Take involving the removal of any life stage of the Southern
DPS from the wild does not exceed 60 minutes;
(vi) Take does not involve artificial spawning or enhancement
activities;
(vii) A description of the study objectives and justification, a
summary of the study design and methodology, estimates of the total
non-lethal take of Southern DPS fish anticipated, estimates of
incidental take of other ESA listed species anticipated and proof that
those takes have been authorized by NMFS or the USFWS, identification
of funding sources, and a point of contact is reported to the NMFS
Southwest Regional Office in Long Beach at least 60 days prior to the
start of the study, or by August 31, 2010 for ongoing studies;
(viii) Reports that include the total number of Southern DPS and
any other ESA listed species taken, information that supports that take
was non-lethal, and a summary of the project results is submitted to
the NMFS Southwest Regional Office in Long Beach on a schedule to be
determined by NMFS; and
(ix) Research or monitoring that involves action, permitting, or
funding by a Federal agency still complies with the requirements of ESA
section 7(a)(2) in order to ensure that the action will not jeopardize
the continued existence of the threatened Southern DPS.
(2) Enforcement Exception. The prohibitions of paragraph (a) of
this section relating to the threatened Southern DPS listed in Sec.
223.102(c)(1) do not apply to any employee of NMFS, when the employee,
acting in the course of his or her official duties, takes the Southern
DPS listed in Sec. 223.102(c)(1) without a permit, if such action is
necessary for purposes of enforcing the ESA or its implementing
regulations.
(3) Emergency Fish Rescue and Salvage Exceptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102(c)(1) do not apply to emergency fish rescue
and salvage activities that include aiding sick, injured, or stranded
fish, disposing of dead fish, or salvaging dead fish for use in
scientific studies, if:
(i) The activity complies with required state or other Federal
reviews or permits;
(ii) The activity is conducted by an employee or designee of NMFS
or the U.S. Fish and Wildlife Service (USFWS), any Federal land
management agency, or California Department of Fish and Game, Oregon
Department of Fish and Wildlife, Washington Department of Fish and
Wildlife, or Alaska Department of Fish and Game;
[[Page 30729]]
(iii) The activity benefits the Southern DPS; and
(iv) Those carrying out the activity submit a report to the NMFS
Southwest Regional Office in Long Beach that includes, at a minimum,
the number and status of fish handled, the location of rescue and/or
salvage operations, and the potential causes(s) of the emergency
situation within 10 days after conducting the emergency rescue.
(4) Habitat Restoration Exceptions. The prohibitions of paragraph
(a) of this section relating to the threatened Southern DPS listed in
Sec. 223.102(c)(1) do not apply to habitat restoration activities
including barrier removal or modification to restore water flows,
riverine or estuarine bed restoration, natural bank stabilization,
restoration of native vegetation, removal of non-native species, or
removal of contaminated sediments, that reestablish self-sustaining
habitats for the Southern DPS, if:
(i) The activity complies with required state and Federal reviews
and permits;
(ii) Those carrying out the activity submit a detailed description
of the restoration activity to the NMFS Southwest Regional Office in
Long Beach at least 60 days prior to the start of the restoration
project, or, for ongoing studies, by August 31, 2010, which includes:
the geographic area affected; when activities will occur; how they will
be conducted; and the severity of direct, indirect, and cumulative
impacts of activities on the Southern DPS; identification of funding
sources; demonstration that all state and Federal regulatory
requirements have been met; a description of methods used to ensure
that the likelihood of survival or recovery of the listed species is
not reduced; a plan for minimizing and mitigating any adverse impacts
to Southern DPS spawning or rearing habitat; an estimate of the amount
of incidental take of the listed species that may occur and a
description of how that estimate was made; a plan for effective
monitoring and adaptive management; a pledge to use best available
science and technology when conducting restoration activities; and a
point of contact;
(iii) Those carrying out the activity submit progress reports that
include the total number of Southern DPS fish taken, information
regarding whether the take was lethal or non-lethal, a summary of the
status of the project, and any changes in the methods being used, to
the NMFS Southwest Regional Office in Long Beach on a schedule to be
determined by NMFS; and
(iv) An activity that involves action, permitting, or funding by a
Federal agency complies with the requirements of ESA section 7(a)(2) in
order to ensure that the action will not jeopardize the continued
existence of the threatened Southern DPS.
(c) Exemptions via ESA 4(d) Program Approval. Exemptions from the
take prohibitions described in section 9(a)(1)(B) and (C) of the ESA
(16 U.S.C. 1538(a)(1)(B) and (C)) applied in paragraph (a) of this
section to the threatened Southern DPS listed in Sec. 223.102(c) are
described in paragraphs (c)(1) through (c)(3) of this section.
(1) Scientific Research and Monitoring Exemptions. The prohibitions
of paragraph (a) of this section relating to the threatened Southern
DPS listed in Sec. 223.102(c)(1) do not apply to ongoing or future
state-sponsored scientific research or monitoring activities that are
part of a NMFS-approved, ESA-compliant state 4(d) research program
conducted by, or in coordination with, state fishery management
agencies (California Department of Fish and Game, Oregon Department of
Fish and Wildlife, Washington Department of Fish and Wildlife, or
Alaska Department of Fish and Game), or as part of a monitoring and
research program overseen by, or coordinated by, one of these agencies.
State 4(d) research programs must meet the following criteria:
(i) Descriptions of the ongoing and future 4(d) research or
monitoring activity, as described in paragraph (c)(1)(ii) of this
section, must be received by the NMFS Southwest Regional Office in Long
Beach during the mid-September through mid-October 2010 application
period. This exception to the section 9 take prohibitions expires if
the proposal is rejected as insufficient or is denied. If the state
4(d) research program package is received during the mid-September to
mid-October application period, ongoing state-supported scientific
research activities may continue until NMFS issues a written decision
of approval or denial. If approved, the state 4(d) program
authorization will cover one calendar year and state-supported
researchers would have to renew authorizations annually during
subsequent application periods.
(ii) Descriptions of ongoing and future state-supported research
activities must include the following information and should be
submitted to NMFS by the State: an estimate of total direct or
incidental take; a description of the study design and methodology; a
justification for take and the techniques employed; and a point of
contact.
(iii) NMFS will provide written approval of a state 4(d) research
program.
(iv) The State agency will provide an annual report to NMFS that,
at a minimum, summarizes the number of Southern DPS green sturgeon
taken directly or incidentally, and summarizes the results of the
project.
(2) Fisheries Exemptions. The prohibitions of paragraph (a) of this
section relating to the threatened Southern DPS listed in Sec.
223.102(c)(1) do not apply to fisheries activities that are conducted
in accordance with a NMFS-approved Fishery Management and Evaluation
Plan (FMEP). If NMFS finds that an FMEP meets the criteria listed
below, a letter of concurrence which sets forth the terms of the FMEP's
implementation and the duties of the parties pursuant to the FMEP, will
be issued to the applicant.
(i) An FMEP must prohibit retention of green sturgeon (i.e., zero
bag limit); set maximum incidental take levels, include restrictions to
minimize incidental take of the green sturgeon (e.g., temporal/spatial
restrictions, size of fish, gear used); provide a biologically based
rationale demonstrating that the incidental take management strategy
will not significantly reduce the likelihood of survival or recovery of
the Southern DPS; include effective monitoring and evaluation plans;
provide for evaluating monitoring data and making revisions to the
FMEP; provide for effective enforcement and education; provide a
timeframe for FMEP implementation; and report the amount of incidental
take and summarize the effectiveness of the FMEP to NMFS on a biannual
basis.
(ii) The ESA section 9(a)(1)(B) and (a)(1)(C) take prohibitions
will not apply to ongoing commercial and recreational fisheries
activities until September 30, 2010 if a letter of intent to develop an
FMEP that is protective of green sturgeon has been received by NMFS by
July 2, 2010. The exemption will expire if the letter of intent is
rejected without further review of a FMEP. If the letter of intent is
received by August 31, 2010, a draft FMEP must be received by NMFS
within 6 months from the date of receipt of the letter of intent. A
final FMEP must be received by NMFS within 3 months from the date of
receipt of NMFS' comments on the draft FMEP. Ongoing commercial and
recreational fisheries activities may continue until NMFS issues a
letter of concurrence or denial for final FMEPs.
(iii) NMFS will provide a public comment period (>=30 days) before
approval of new or amended FMEPs; provide a letter of concurrence for
[[Page 30730]]
approved FMEPs that specifies the implementation and reporting
requirements; evaluate FMEPs every 5 years and identify changes that
would improve their effectiveness; and provide a public comment period
(>=30 days) before withdrawing approval of an FMEP.
(3) Tribal Exemptions. The prohibitions of paragraph (a) of this
section relating to the threatened Southern DPS listed in Sec.
223.102(c)(1) do not apply to fishery harvest or other activities
undertaken by a tribe, tribal member, tribal permittee, tribal
employee, or tribal agent in Willapa Bay, WA, Grays Harbor, WA, Coos
Bay, OR, Winchester Bay, OR, Humboldt Bay, CA, and any other area where
tribal treaty fishing occurs, if those activities are compliant with a
tribal resource management plan (Tribal Plan), provided that the
Secretary determines that implementation of such Tribal Plan will not
appreciably reduce the likelihood of survival and recovery of the
Southern DPS. In making that determination the Secretary shall use the
best available biological data (including any tribal data and analysis)
to determine the Tribal Plan's impact on the biological requirements of
the species, and will assess the effect of the Tribal Plan on survival
and recovery, consistent with legally enforceable tribal rights and
with the Secretary's trust responsibilities to tribes.
(i) A Tribal Plan may include, but is not limited to, plans that
address fishery harvest, artificial production, research, or water or
land management, and may be developed by one tribe or jointly with
other tribes. The Secretary will consult on a government-to-government
basis with any tribe that so requests and will provide, to the maximum
extent practicable, technical assistance in examining impacts on the
Southern DPS as tribes develop Tribal Plans. A Tribal Plan must specify
the procedures by which the tribe will enforce its provisions.
(ii) Where there exists a Federal court proceeding with continuing
jurisdiction over the subject matter of a Tribal Plan, the plan may be
developed and implemented within the ongoing Federal Court proceeding.
In such circumstances, compliance with the Tribal Plan's terms shall be
determined within that Federal Court proceeding.
(iii) The Secretary shall seek comment from the public on the
Secretary's pending determination whether implementation of a Tribal
Plan will appreciably reduce the likelihood of survival and recovery of
the listed Southern DPS.
(iv) The Secretary shall publish notification in the Federal
Register of any determination regarding a Tribal Plan and the basis for
that determination.
(d) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and
other exceptions under the ESA relating to endangered species,
including regulations in part 222 of this chapter II implementing such
exceptions, also apply to the threatened Southern DPS of North American
green sturgeon listed in Sec. 223.102(c)(1). Federal, state, and
private-sponsored research activities for scientific research or
enhancement purposes that are not covered under Scientific Research and
Monitoring Exceptions as described in paragraph (b)(1) of this section
or Scientific Research and Monitoring Exemptions as described in
paragraph (c)(1) of this section, may take Southern DPS fish pursuant
to the specifications of an ESA section 10 permit. Section 9(a)(1)(B)
and (a)(1)(C) take prohibitions would not apply to ongoing research
activities if an application for an ESA section 10(a)(1)(A) permit is
received by NMFS, preferably through the NMFS online application Web
site https://apps.nmfs.noaa.gov, no later than November 29, 2010. The
take prohibitions would take effect if the permit application is
rejected as insufficient or a permit is denied. If the permit
application is received by November 29, 2010, ongoing research
activities may continue without take prohibitions until NMFS issues or
denies a permit.
(e) Affirmative Defense. In connection with any action alleging a
violation of the prohibitions of paragraph (a) of this section with
respect to the threatened Southern DPS of North American green sturgeon
listed in Sec. 223.102(c)(1), any person claiming that his or her take
is authorized via methods listed in paragraph (b) of this section shall
have a defense where the person can demonstrate that the take
authorization is applicable and was in force, and that the person fully
complied with the take authorization requirements at the time of the
alleged violation. This defense is an affirmative defense that must be
raised, pleaded, and proven by the proponent. If proven, this defense
will be an absolute defense to liability under section 9(a)(1)(G) of
the ESA with respect to the alleged violation.
[FR Doc. 2010-13233 Filed 6-1-10; 8:45 am]
BILLING CODE 3510-22-P