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

[[Page 26437]]


Part III

Department of the Interior


Fish and Wildlife Service

50 CFR Part 17

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

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Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF56

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


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

EFFECTIVE DATE: June 5, 2000.

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

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



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

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

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

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

Previous Federal Actions

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

[[Page 26442]]

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

Summary of Comments and Recommendations

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

Proposed Rule

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

[[Page 26443]]

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

[[Page 26444]]

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

[[Page 26445]]

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

[[Page 26446]]

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

[[Page 26447]]

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

[[Page 26448]]

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

[[Page 26449]]

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

[[Page 26450]]

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

[[Page 26451]]

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

Fain et al. (2000) Report

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

[[Page 26452]]

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

Conservation Agreement Strategy

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

[[Page 26453]]

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

Peer Review

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

Summary of Factors Affecting the Species

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

[[Page 26454]]

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

[[Page 26455]]

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

State Conservation Efforts

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

[[Page 26456]]

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

Critical Habitat

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

[[Page 26457]]

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

Available Conservation Measures

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

[[Page 26458]]

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

References Cited

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

Introduction to the White Paper (Biggins 1994)

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

[[Page 26459]]

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

The White Paper (Biggins 1994)

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

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

[[Page 26460]]

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

[[Page 26461]]

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

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

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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


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

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

Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

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

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

                   *                  *                  *                  *                  *                  *                  *

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