Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule for Endangered Status and Critical Habitat for the Alabama Sturgeon

SUMMARY: The U.S. Fish and Wildlife Service (Service) withdraws the

proposed rule to determine endangered status and critical habitat for

the Alabama sturgeon (Scaphirhynchus suttkusi) under the Endangered

Species Act of 1973, as amended (Act). This sturgeon is endemic to, and

was once widespread in, the Mobile River system in Alabama and

Mississippi. It has significantly declined in both population size and

range during the past century. The fish was last known to exist in only

a short, free-flowing reach of the Alabama River downstream of

Claiborne Lock and Dam in Clarke and Monroe Counties, Alabama; it may

still exist in some other portions of its historical range. The primary

factors that have likely contributed to the sturgeon's decline include

dams, the development of the rivers for navigation, altered river

flows, gravel-mining operations, general habitat degradation from land

use practices, and, perhaps, overfishing (particularly at the turn of

the century). The Service finds there to be insufficient information to

justify listing a species that may no longer exist.

ADDRESSES: For the first 6 months following the publication of this

notice, the complete administrative file for the action will be

available for inspection, by appointment, during normal business hours

at the U.S. Fish and Wildlife Service, Asheville Field Office, 330

Ridgefield Court, Asheville, North Carolina 28806. Six months after

publication, the administrative file will be transferred to the U.S.

Fish and Wildlife Service, Jackson Field Office, 6578 Dogwood View

Parkway, Suite A, Jackson, Mississippi 39213.

FOR FURTHER INFORMATION CONTACT: For information or comment upon this

action for the first 6 months following publication, contact Mr.

Richard G. Biggins at the above Asheville address (704/665-1195, Ext.

228) or Mr. Robert S. Butler, U.S. Fish and Wildlife Service, 6620

Southpoint Drive South, Suite 310, Jacksonville, Florida 32216 (904/

232-2580).

SUPPLEMENTARY INFORMATION:

Background

The Mobile River system is the largest drainage east of the

Mississippi River that empties into the Gulf of Mexico. The system

drains ten physiographic provinces, providing a unique mosaic of

aquatic habitats and environments (U.S. Fish and Wildlife Service

1994). Several Southeastern regional aquatic faunas have influenced the

Mobile River system's aquatic fauna. The influence of these regional

faunas, coupled with the size of the system and the diversity of its

aquatic habitats and physiographic features, has resulted in a high

degree of diversity and endemism. The high percentage of aquatic

endemism is particularly manifested in the snail (93 percent endemic),

mussel (40 percent), and freshwater fish (25 percent) faunas, as well

as in the crayfish and aquatic insect faunas (U.S. Fish and Wildlife

Service 1994).

Commensurate with the high level of diversity and endemism, the

Mobile River system also has a high number of federally protected and

candidate aquatic species. Presently, 17 mussels, 8 fishes, 2 turtles,

and 1 snail are protected under the Act, and 64 more aquatic taxa are

candidates for Federal protection (U.S. Fish and Wildlife Service

1994). The Service has also documented the extinction of 37 endemic

snail and 18 endemic mussel taxa in the Mobile River system (U.S. Fish

and Wildlife Service 1994). The high extinction rate and the number of

federally protected and candidate taxa in the system clearly define an

unstable and imperiled riverine ecosystem. Further decline of the

riverine ecosystem can be expected if the anthropogenic forces

impacting the fauna continue without considering the needs of this

aquatic ecosystem.

The Alabama sturgeon, once called the Alabama shovelnose sturgeon,

or simply shovelnose sturgeon, has been recognized since 1976 as a

distinct, undescribed taxon (Ramsey 1976) that is most similar to the

shovelnose sturgeon (Scaphirhynchus platorynchus) of the Mississippi

River system. The Alabama sturgeon is a relatively small sturgeon; the

maximum standard length is about 72 centimeters (28 inches). It has an

elongated, heavily armored, depressed body and an attenuated caudal

peduncle. The caudal fin has a long filament on the upper lobe that is

characteristic of the genus. Sexual dimorphism is slight. Morphological

characteristics of the juvenile Alabama sturgeon are unknown. The

Alabama sturgeon can generally be distinguished from the shovelnose

sturgeon by several characters; the Alabama sturgeon almost always has

larger eyes, it has different plate numbers posterior to the anal fin,

there is a difference in dorsal fin ray numbers (Williams and Clemmer

1991; Mayden and Kuhajda, in press), and there are diagnostic

characters associated with its head armature (Mayden and Kuhajda, in

press).

The Alabama sturgeon was described as S. suttkusi by Williams and

Clemmer (1991) and was accepted as a distinct species in the proposed

rule of June 3, 1993 (58 FR 33148). Subsequently, various scientists

have examined museum specimens of the Alabama sturgeon and genetically

analyzed tissue samples from a specimen captured in December 1993. A

comparison of these specimens was then made with the congeneric

shovelnose and pallid sturgeons, both of the Mississippi River system.

(The latter species was listed as endangered on September 6, 1990 (55

FR 36647).) Various investigators have derived conflicting results as

to the Alabama sturgeon's taxonomic distinctiveness.

In the original description of the Alabama sturgeon (Williams and

Clemmer 1991), a comparison based on morphological characters was made

of the Alabama sturgeon to several populations, mostly southern or

lower midwestern, of the shovelnose sturgeon. Mayden and Kuhajda (in

press), in a study recently accepted for publication in a peer-reviewed

scientific journal, concluded that the Alabama sturgeon is indeed a

distinct species. In fact, they found three additional diagnostic

morphological characters associated with head armature that would

distinguish the Alabama sturgeon from the shovelnose sturgeon, which

are based upon a thorough reexamination of the raw data used in the

original description, combined with data gathered from the recently

captured Alabama sturgeon and data from additional shovelnose sturgeon

populations. In addition, there was no evidence of geographic clinal

variation in these diagnostic features to suggest that the two

taxonomic entities were not morphologically distinct at the species

level (Mayden and Kuhajda, in press).

Unpublished reports by Howell (1993, 1994), Blanchard and

Bartolucci (1994), and Blanchard (1994) also reevaluated the raw data

used in the description by Williams and Clemmer (1991). These studies

questioned the taxonomic validity of S. suttkusi. They concluded that

the data analyses in the original description were inconclusive and

that the Alabama sturgeon could not be distinguished from the

shovelnose sturgeon. In another unpublished report, Howell et al.

(1994) critiqued Mayden and Kuhajda (in press), questioning their

statistical methods and repudiating one of the three additional

taxonomic characters determined to separate the two sturgeon species in

the latter study. However, the Mayden and Kuhajda study (in press) has

been peer-reviewed and accepted for publication in a scientific

journal.

The capture of a single specimen of the Alabama sturgeon in

December 1993 afforded scientists the opportunity to obtain fresh

tissue samples and compare its genetic distinctiveness with other

sturgeons. One completed, but unpublished, report comparing the

genetics of these two sturgeons (Schill and Walker 1994) concluded that

the Alabama shovelnose and pallid sturgeons were indistinguishable

based on estimates of sequence divergence at the mitochondrial

cytochrome b locus. This result is similar to other studies where no

cytochrome b differentiation was found among other fish species within

a genus where the species were based on well-accepted morphological,

behavioral, and other characteristics (Avise 1994). Therefore, the use

of the very conservative cytochrome b locus appears to be of little

taxonomic use in differentiating members of the genus Scaphirhynchus.

The Service has received a very recent study report prepared for

the Corps of Engineers and the Service (Genetic Analyses 1994). The

study compared a number of nuclear DNA markers for the three

Scaphirhynchus sturgeons and found no measurable difference between

pallid and shovelnose sturgeons but significant differences between

those sturgeons and the one Alabama sturgeon. Further, this study shows

that the single specimen of Alabama sturgeon captured in 1993 was

considerably different from pallid and shovelnose sturgeons. This

genetic study also indicated that another specimen of Alabama sturgeon

would very probably provide conclusive evidence of these consistent

differences.

The Service recognizes that the taxonomic status of the Alabama

sturgeon is being reviewed by the scientific community. However, none

of the recent taxonomic information has been subjected to peer review

and published in a scientific journal, with the exception of the study

of Mayden and Kuhajda (in press), which has been accepted for

publication in a peer-reviewed scientific journal. Williams and

Clemmer's (1991) description of the Alabama sturgeon was published in a

peer-reviewed scientific journal and complied with all the rules of the

International Code of Zoological Nomenclature (Sec. 17.11(b)).

Furthermore, the study by Mayden and Kuhajda (in press) corroborates

the determination by Williams and Clemmer (1991) that the Alabama

sturgeon is a distinct species.

Thus, until such time as the Alabama sturgeon's taxonomic status is

revised in an appropriate peer-reviewed scientific journal and accepted

by the scientific community, the Service will consider the Alabama

sturgeon (S. suttkusi) to be a distinct species based on these two

studies. The Alabama sturgeon's taxonomy may be subsequently revised to

subspecies or population status by the scientific community; if so, the

Alabama sturgeon would still qualify as being eligible for protection

under the Act (see the response to Issues 22 and 45 in the ``Summary of

Comments and Recommendations'' section of this notice).

Section 3(15) of the Act (16 U.S.C. 1531-1544), specifically

provides for listing species, subspecies, and distinct population

segments of vertebrate species as endangered or threatened. Although

the Service finds that there is some disagreement among ichthyologists

concerning the Alabama sturgeon's taxonomic status, the Service has

determined that the Alabama sturgeon warrants recognition as a species

as defined by the Act.

The Alabama sturgeon is known only from the Mobile River system of

Alabama and Mississippi. Historically, this sturgeon was found in the

Mobile, Tensas, Alabama, Tombigbee, Black Warrior, Cahaba, Tallapoosa,

and Coosa Rivers of the Mobile River system (Burke and Ramsey 1985).

The only recent confirmed record of the Alabama sturgeon (since about

1985) is from the free-flowing portion of the Alabama River downstream

of Claiborne Lock and Dam, Clarke and Monroe Counties, Alabama.

The Alabama sturgeon was once common in Alabama. In a statistical

report to Congress in 1898 (U.S. Commission of Fish and Fisheries

1898), the total catch of ``shovelnose sturgeon'' from Alabama was

19,500 kilograms (kg) (42,900 pounds (lb)). Of this total, 18,000 kg

(39,500 lb) came from the Alabama River, 1,000 kg (2,300 lb) from the

Black Warrior River, and 500 kg (1,100 lb) from the Tennessee River.

The ``shovelnose sturgeon'' reported from the Alabama and Black Warrior

Rivers was the Alabama sturgeon (S. suttkusi), which averages about 1

kilogram (2 lb) for a large specimen; the sturgeon from the Tennessee

River was the shovelnose sturgeon (S. platorynchus). An anonymous

article in the Alabama Game and Fish News in 1930 stated that the

Alabama sturgeon was ``not uncommon.''

Records of this fish supported by preserved specimens are rare.

Clemmer (1983) listed 23 specimens in museum collections. In their

status survey, Burke and Ramsey (1985) captured only five Alabama

sturgeons. Williams and Clemmer (1991) located another nine specimens

in addition to those examined by Clemmer (1983), making a total of 32

specimens in museum, university, and private collections.

Interestingly, since 1953 there has generally been a 7- to 8-year

hiatus between representative collections of the Alabama sturgeon in

museums (Mayden and Kuhajda, in press), suggesting that the population

may cycle in abundance. It would appear that the Alabama sturgeon,

throughout much of its life, occupies habitat that is inaccessible to

collectors (Kuhajda, University of Alabama, in litt., 1994). Based on

museum records, the Alabama sturgeon has been captured in February,

March, April, May, June, November, and December, with the majority of

specimens representing spring collections (Kuhajda, in litt., 1994).

Verified localities of the captures have primarily been large channels

of big rivers in the Mobile River system. However, a couple of Alabama

sturgeon records are from oxbow lakes (Williams and Clemmer 1991).

When the proposed rule was published (June 15, 1993; 58 FR 33148),

the most recent documented evidence of the Alabama sturgeon's continued

existence consisted of the capture of five Alabama sturgeons in 1985

(Burke and Ramsey 1985); two were gravid females and one was a juvenile

about 2 years old. Biologists from the Alabama Department of

Conservation and Natural Resources (ADCNR), with the assistance and

cooperation of the U.S. Army Corps of Engineers (Corps), have in recent

years (1990 and 1992) conducted periodic searches for the Alabama

sturgeon, utilizing a variety of sampling gear, without verifying the

presence of a single specimen (Tucker and Johnson 1991, 1992).

Nevertheless, the gravid females and juvenile Alabama sturgeons

captured by Burke and Ramsey (1985) provided sufficient evidence that

reproduction was occurring during at least the mid-1980s. Coupled with

a high longevity, the likelihood that the Alabama sturgeon could have

survived to the present appeared sufficient to warrant making the

proposal.

Since the Burke and Ramsey (1985) status survey, there have been

several anecdotal reports by commercial fishermen that two distinct

sturgeons have been taken from the Mobile River system in portions of

the Alabama River upstream of Claiborne Lock and Dam. These reports

presumably refer to the Alabama sturgeon and the Gulf sturgeon

(Acipenser oxyrynchus desotoi). The Gulf sturgeon can achieve lengths

up to 2 meters (m) (6.6 feet), lacks the long filament on the upper

lobe of the caudal fin, is generally more robust, and has a shorter and

deeper caudal peduncle than does the Alabama sturgeon. In addition, the

Gulf sturgeon is anadromous, migrating as adults up rivers from the

Gulf of Mexico to spawn. The Gulf sturgeon was listed as threatened on

September 30, 1991 (56 FR 49658).

The Service and the ADCNR conducted an extensive sampling program

in 1993 in an effort to locate the Alabama sturgeon in the Mobile River

system. On December 2, 1993, a mature male Alabama sturgeon was caught

alive in a gill net by staff of the Service's Panama City, Florida,

Field Office. The capture site was in the free-flowing portion of the

Alabama River downstream of Claiborne Lock and Dam, Clarke and Monroe

Counties, Alabama. This specimen represents the only verified record of

the Alabama sturgeon in about 8 years. From the chronology of

commercial harvest and scientific collections of the Alabama sturgeon,

it is obvious that this fish has experienced a tremendous decline in

both population size and range in just 100 years.

After publication of the notice of a 6-month extension of the

deadline and comment period (June 21, 1994; 59 FR 3197), the Service

undertook further efforts to capture specimens of the Alabama sturgeon.

These efforts, which began in late September 1994, are planned to

continue semi-monthly until May 1995, environmental conditions

permitting. The Service is primarily using gill nets, with lesser

emphasis on utilizing trotlines and electrofishing, in efforts to

capture this fish. Sampling effort is focused on the free-flowing

portion of the Alabama River downstream of Claiborne Lock and Dam. At

the time of publication of this notice of withdrawal, the Service had

not collected any specimens of the Alabama sturgeon in 1994.

The specific habitat needs of the Alabama sturgeon are largely

unknown. The shovelnose sturgeon is most common in river channels that

have strong currents over sand, gravel, and rock substrates (Trautman

1981, Hurley et al. 1987, Curtis 1990) but may occasionally occur over

softer sediments (Bailey and Cross 1954). Habitat selection also

appears to be dictated by current velocities (Hurley et al. 1987). The

shovelnose sturgeon often uses habitats associated with channel-

training devices (Hurley and Nickum 1984, Hurley et al. 1987, Curtis

1990), which are water-diversion structures (e.g., training dikes, wing

walls, and closing dams) used for directing currents to maintain

channels. The association of the shovelnose sturgeon with these

habitats may be correlated with higher prey item densities and suitable

current velocities (Hurley et al. 1987); high silt loads directly

impact many invertebrates that require a relatively stable substrate.

The Corps provided funds for the Service to investigate the possibility

that the Alabama sturgeon also uses habitats associated with channel-

training devices in the Alabama River. However, no conclusions were

derived from this study as no Alabama sturgeons were captured (Corps,

in litt., 1993).

Based upon the limited information available, the Alabama sturgeon

appears to prefer relatively stable substrates of gravel and sand in

river channels with swift currents (Burke and Ramsey 1985). Relying

upon data from Alabama sturgeon prey items and the prey's typical

habitats, it was hypothesized (Haynes 1994) that the Alabama sturgeon,

primarily collected from the confluence of the Cahaba and Alabama

Rivers, was using feeding habitat that could include areas that are

relatively shallow and sandy and that have a slow to moderate current.

Limited data collected from a radio-collared Alabama sturgeon suggested

that it frequented swift currents in water 7.5 to 12.0 m (25 to 40

feet) deep (Burke and Ramsey 1985).

Members of the genus Scaphirhynchus are freshwater fish (Bailey and

Cross 1954) that do not make seasonal migrations to and from the sea.

Sturgeons are thought to swim upstream to spawn (Becker 1983).

Shovelnose sturgeons, based on telemetry studies conducted during the

spawning season, were found to migrate limited distances (Hurley et al.

1987). Spawning habitats for the Alabama sturgeon are generally

unknown. Spawning shovelnose sturgeons generally use hard substrates

that may occur in main-channel areas or deep-water habitats associated

with channel-training devices in major rivers or possibly in

tributaries (Hurley and Nickum 1984). Observations by Burke and Ramsey

(1985) suggest that the Alabama sturgeon prefers spawning habitat

similar to the shovelnose sturgeon.

Currents are required for the development of sturgeon's adhesive

eggs, which require 5 to 8 days to hatch (Burke and Ramsey 1985).

Shovelnose sturgeon spawning apparently occurs from April to July (Moos

1978). The spawning period for the shovelnose sturgeon probably depends

upon water temperature and flows (Moos 1978), as it does for numerous

other fish species. Henry and Ruelle (1992) conducted a study of

shovelnose sturgeon reproduction in the Mississippi River system,

concluding that they do not spawn every year and that poor body

condition may result in the production of fewer eggs or infrequent

spawning attempts. The shovelnose sturgeon was reported to reach sexual

maturity after 4 to 6 years, with spawning occurring at 1- to 3-year

intervals (Helms 1974, Moos 1978). Little is known about the Alabama

sturgeon's reproductive biology. However, given what is known

concerning the chronology of Alabama sturgeon collections and the

reproductive biology of other sturgeon species, populations of the

Alabama sturgeon may be cyclical, with peak numbers possibly occurring

every 7 to 8 years (Mayden and Kuhajda, in press).

Several studies have aged sturgeon of the genus Scaphirhynchus by

cross-sectioning pectoral fin spines. Helms (1973) aged shovelnose

sturgeons in the Mississippi River at up to 12 years. Durkee et al.

(1979) aged shovelnose sturgeons at up to 14 years in the upper

Mississippi River system. Ages ranged from 8 to 27 years for the 288

shovelnose sturgeons sampled from the Missouri River (Zweiacker 1967).

However, Zweiacker (1967) could not validate the marks interpreted as

annuli (Moos 1978). Ruelle and Keenlyne (1993) aged three pallid

sturgeons (S. albus) in the Missouri River at 10, 37, and 41 years.

Considering the longevity of other members of this genus, the rarity of

the Alabama sturgeon, the extreme difficulty in capturing specimens,

and the several-year hiatus that occurs between major year classes,

frequent Alabama sturgeon encounters should not be expected.

Burke and Ramsey (1985) conducted stomach analyses of a few Alabama

sturgeons. They found that aquatic insect larvae were a major dietary

component, but fish eggs, snails, mussels, and fish were also taken. A

recent study (Haynes 1994) examined the stomach contents of 12

additional Alabama sturgeon specimens. Aquatic insects, which were

found in all 12 stomachs, were represented primarily by true flies

(mostly Ceratopogonidae and Chironomidae), mayflies (mostly

Heptageniidae), dragonflies (mostly Gomphidae), and caddisflies (mostly

Hydropsychidae). Small fish and plant material were also found in five

and four stomachs, respectively (Haynes 1994). The shovelnose sturgeon,

based on a study conducted in the Missouri River, is an opportunistic

feeder (Modde and Schmulbach 1977); various groups of aquatic insect

larvae generally comprised their diet in that river (Modde and

Schmulbach 1977, Durkee et al. 1979).

Previous Federal Actions

The Alabama sturgeon was included in Federal Register notices of

review for candidate animals in 1982, 1985, 1989, and 1991. In the 1982

notice (47 FR 58454) and in the 1985 notice (50 FR 37958), this fish

was listed as a category 2 species (sufficient information indicates

proposing to list may be appropriate, but conclusive data are not

currently available to support a proposed rule). In the 1989 and 1991

notices (54 FR 554 and 56 FR 58816), the Alabama sturgeon was listed as

category 1 species (substantial information supports listing). On June

15, 1993, the Service proposed the Alabama sturgeon to be listed as

endangered with critical habitat (58 FR 33148). The Service has

determined that endangered status for the Alabama sturgeon is not

appropriate at this time because of insufficient information available

to conclude that the species still exists (see the responses to Issues

21, 22, and 45 in the ``Summary of Comments and Recommendations''

section and the concluding paragraph in the ``Summary of Factors

Affecting the Species'' section of this notice).

Summary of Notices and Related Actions following Proposal

In the June 15, 1993, proposed rule and through associated

notifications, interested parties were requested to submit factual

reports and information that might contribute to the development of a

final rule to list the Alabama sturgeon as endangered with critical

habitat. The initial comment period was open until October 13, 1993.

Appropriate Federal and State agencies, county governments, scientific

organizations, and interested parties were contacted by letter dated

June 21, 1993; a copy of the proposed rule was enclosed, and their

comments on the rule were solicited. Legal notices were published in

the Birmingham News, Birmingham, Alabama, on July 25, 1993; the Mobile

Press-Register, Mobile, Alabama, on July 25, 1993; the Montgomery

Advertiser, Montgomery, Alabama, on July 24, 1993; and the Clarion

Ledger, Hinds County, Mississippi, on July 23, 1993. The proposed rule

also stated that a public hearing would be conducted to answer

questions and gather additional information on the biology of the

Alabama sturgeon and discuss issues relating to the proposed listing

and critical habitat designation.

The first scheduled public hearing on the Service's proposal to

list the Alabama sturgeon as an endangered species with critical

habitat was for August 31, 1993, in Mobile, Alabama. The comment period

remained open until October 13, 1993. A notice of the hearing was

published in the Federal Register on July 27, 1993 (58 FR 40109), and a

legal notice was published in the Birmingham News on August 1, 1993.

This public hearing was subsequently canceled at the request of some

members of the Alabama Congressional delegation. A cancellation notice

was published in the Federal Register on August 24, 1993 (58 FR 44643),

and legal notices were published in the Birmingham News on August 29,

1993; the Montgomery Advertiser on August 29, 1993; and the Clarion

Ledger on August 27, 1993.

The August 1993 public hearing on this proposal was rescheduled for

October 4, 1993, at the William K. Weaver Hall Auditorium on the campus

of Mobile College, Mobile, Alabama. The comment period would remain

open until October 13, 1993. A notice of the hearing and extension of

the comment period was published in the Federal Register on September

13, 1993 (58 FR 47851).

Due to the tremendous interest in this issue, a large number of

people who came to the October 4, 1993, hearing had to be turned away

due to space constraints. Although neither the Act nor the

Administrative Procedure Act (5 U.S.C. 551 et seq.) required that a

second hearing be held, the Service decided that it was in the best

interest of all concerned parties that they have an opportunity to

comment on issues raised in the Alabama sturgeon proposed rule.

Therefore, an additional public hearing was scheduled in Montgomery,

Alabama, on November 15, 1993, to allow for additional comments from

the interested public. A notice of the second hearing, reopening of the

comment period (from October 25, 1993, to December 8, 1993), and notice

of availability of a scientific panel report was published in the

Federal Register on October 25, 1993 (58 FR 55036). Legal notices for

this second hearing appeared in the Birmingham News on October 26,

1993; the Mobile Press-Register on October 24, 1993; the Montgomery

Advertiser on October 29, 1993; and the Clarion Ledger on October 29,

1993.

In an effort to clarify some of the biological information

concerning the sturgeon, the Secretary of the Interior committed the

Service to forming a peer-review panel. The Service completed the

formation of a panel of biologists in September 1993; the panel was to

provide a peer review of all the scientific and commercial data then

available and to prepare individual reports to specifically review

three issues--(1) the taxonomy of the sturgeon, (2) the likely

existence of the fish based on available data, and (3) what information

would be necessary to conclude that the taxon is likely extinct. Just

prior to submission of their reports, the panel requested permission to

submit a single consolidated report; the Service agreed to this. The

report was delivered to the Service on November 5, 1993.

The November 15, 1993, hearing was canceled in response to a

preliminary injunction issued on November 9, 1993. The timing of the

injunction gave the Service insufficient time to publish public hearing

notices of cancellation in either the Federal Register or area

newspapers. A second public hearing notice appeared in the Federal

Register (59 FR 289) dated January 4, 1994. The hearing was scheduled

for January 13, 1994, and the comment period was extended through

January 31, 1994. Legal notices for this rescheduled hearing were

published in the Birmingham News on December 26, 1993; the Mobile

Press-Register on December 26, 1993; the Montgomery Advertiser on

December 27, 1993; and the Clarion Ledger on December 28, 1993.

As outlined in the January 4, 1994, Federal Register notice, the

preliminary injunction restrained the Service and others from (1)

disseminating the scientific panel report to the public and (2)

utilizing or relying upon the scientific panel report or any product of

the experts' deliberations in connection with the decision-making

process on the proposal to list the Alabama sturgeon and designate its

critical habitat. The January 4, 1994, notice also referred to another

court order issued December 22, 1993; the relevant parts of that court

order are as follows:

Federal defendants and defendant-intervenor, and those acting in

active concert with them, are hereby permanently enjoined from

publishing, employing and relying upon the advisory Committee report

. . . for any purpose whatsoever, directly or indirectly, in the

process of determining whether to list the Alabama sturgeon as an

endangered species.

In a notice appearing in the Federal Register (59 FR 997) on

January 7, 1994, the January 13, 1994, public hearing was canceled and

rescheduled for January 31, 1994, at South Hall #1, Montgomery Civic

Center, Montgomery, Alabama. The comment period was extended to

February 15, 1994. Cancellation of the second public hearing was made

to provide more notice of the hearing to the public. Legal notices for

the rescheduled public hearing appeared on January 19, 1994, in four

area newspapers--the Birmingham News, Mobile Press-Register, Montgomery

Advertiser, and Clarion Ledger. Mention was also made in this notice

that, in keeping with the court restrictions issued in Alabama-

Tombigbee River Development Coalition (Coalition) v. Fish and Wildlife

Service, Civ. No. 93-AR-2322-S, the Service considered itself compelled

to enforce constraints on the submission of oral and written comments

while the court restrictions remained in effect. Individuals or

organizations could not refer to the scientific report or to any drafts

or other products derived from the preparation of that report in

presenting any oral statement or written comment and individuals or

organizations could not attempt to bolster their oral or written

comments or opinions by referring to the scientific report as

authority. Therefore, the departmental hearing officer at the next

hearing was authorized to terminate the opportunity to speak of any

person making a statement if, in the judgment of the hearing officer,

that person disregarded the instructions not to address the scientific

report or its contents. Written comments or materials which contained

information that violated the above restrictions would be marked and

thereafter excluded from the administrative record while the court

restrictions remained in effect.

The Federal Register (59 FR 31970) on June 21, 1994, contained a

notice of a 6-month extension of the deadline and reopening of the

comment period for the proposed rule to list the Alabama sturgeon as an

endangered species with critical habitat. The Service's rationale for

the 6-month extension was based on the premise that there continued to

be a lack of substantial information available concerning whether the

Alabama sturgeon still existed. The comment period was reopened through

September 15, 1994, to seek additional comments on the population

status of the Alabama sturgeon, and the deadline for final action on

the proposal was extended to December 15, 1994. Legal notices for the

extension and reopening of the comment period appeared in the

Birmingham News on August 11, 1994; the Mobile Press-Register on August

5, 1994; the Montgomery Advertiser on August 8, 1994; and the Clarion

Ledger on August 12, 1994.

On September 15, 1994, the Federal Register (59 FR 47294) contained

a notice that further extended the comment period to October 17, 1994,

and sought additional comments on only the scientific point of whether

the Alabama sturgeon still exists. Legal notices for this extension of

the comment period appeared in the Birmingham News on September 28,

1994; the Mobile Press-Register on September 24, 1994; the Montgomery

Advertiser on September 23, 1994; and the Clarion Ledger on September

28, 1994. By way of 81 letters to scientists dated September 13, 1994,

the Service requested comments on two specific questions regarding the

sturgeon's continued existence--(1) Is it likely that the Alabama

sturgeon (Scaphirhynchus suttkusi) still exists in the Mobile River

system and (2) what information would be needed to substantiate claims

that the Alabama sturgeon is likely extinct?

Eight scientists responded to this inquiry. Five respondents

strongly supported the assertions that the Alabama sturgeon is extant,

and that at least several decades of negative data from sturgeon

sampling efforts would be needed to consider the species extinct. The

other three respondents did not specifically address the question of

the present existence of the sturgeon.

The Service believes that it is premature to make a definitive

decision on the species' continued existence (see the response to Issue

15). Therefore, the Service finds that there is insufficient

information available that the Alabama sturgeon is still extant.

Summary of Public Comments

The Service received several thousand written and oral comments

associated with the two hearings, the two extended comment periods

regarding the proposed listing of the Alabama sturgeon with critical

habitat, and the two comment periods associated with the 6-month

extension of the deadline. Several hundred individuals and

organizations supported the listing; however, the vast majority of the

respondents did not support the listing and most of these comments were

opinions based upon perceived economic impacts and not scientific data,

as required under the Act. Following is a summary of the comments,

concerns, and questions (referred to as ``Issues'' for the purpose of

this summary) expressed in writing or presented orally during the

comment periods and at the public hearings. Issues of similar content

have been addressed under one issue heading. These issues and the

Service's response to each are presented below.

Issue 1: Various respondents were concerned that listing the

Alabama sturgeon would require the Corps' maintenance dredging of the

Alabama River to be sharply curtailed or even eliminated, ultimately

ceasing barge navigation on the river and costing millions, or

billions, of dollars in lost revenue and possibly 20,000 jobs to the

Alabama economy.

Response: Maintenance dredging by the 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 material 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 (see

``Background'' section of this notice). 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 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. The Corps and the Service agree 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, will pursue research (within 3 years and based on the

availability of funds) regarding the potential impacts of maintenance

dredging activities, including turbidity, on the shovelnose sturgeon.

Consequently, the Service has concurred with the Corps' determination

that, based on current information, their annual maintenance dredging

program does not adversely affect the Alabama sturgeon.

Thus, as it is currently believed that the Corps' annual

maintenance dredging program on the Alabama and lower Tombigbee Rivers

is not likely to affect the Alabama sturgeon, these channel maintenance

activities will not need to be eliminated, modified in timing or

duration, or altered to protect any surviving Alabama sturgeon.

Therefore, no loss of revenue from diminished annual channel

maintenance activities would have been associated with the listing of

the Alabama sturgeon (see response to Issue 19).

Issue 2: Numerous respondents felt that the Service had failed to

meet the minimum standard of proof that the Alabama sturgeon was an

endangered species. Therefore, the Service cannot comply with the Act's

best available information standard for making a listing determination.

Response: The Service agrees that little information exists on the

species' life history, environmental requirements, or its historic and

current population levels. However, the best available information

standard (section 4(b)(1)(A)--``A determination to list a species shall

be based on the best available scientific and commercial information on

the species' status'') does not require the Service to possess detailed

or extensive information upon the general biology of the species or an

actual determination of the causes for this status in order to make a

listing determination. The Act's information standard requires only

that the best available information must support a conclusion that the

species meets the Act's definition for threatened or endangered species

status after consideration of the five factors discussed in the

``Summary of Factors Affecting the Species'' section of this notice.

On July 1, 1994, the Service announced (59 FR 34271) an interagency

policy to provide criteria, establish procedures, and provide guidance

to ensure that decisions made by the Service represent the best

available scientific and commercial data available. The Service has

complied with those procedures and criteria of the policy in making

this decision and has carefully reviewed all data submitted on this

matter.

For example, the best available information clearly supports the

conclusion that the species has experienced a significant population

decline in the last 100 years. The Alabama sturgeon was common in the

late 1890s (U.S. Commission of Fish and Fisheries 1898) and was

reported to be ``not uncommon'' in the 1930s (Anonymous 1930). However,

Burke and Ramsey (1985) were able to capture only five Alabama

sturgeons in the mid-1980s. After searches by the ADCNR in 1990, 1991,

and 1992, utilizing a variety of sampling gear (Tucker and Johnson

1991, 1992), and by the ADCNR and the Service in 1993, only one

specimen was captured. Based on these factors and other information

discussed in the ``Summary of Factors Affecting the Species'' section

of this notice, the Service is confident that the best available

information standard, as required by the Act, was met in the decision

to withdraw the proposal to list the Alabama sturgeon as endangered.

Issue 3: Several respondents believed that the Service should defer

any decision to list the species until solid, verifiable scientific

information is available on the fish's habitat requirements, threats,

and population status.

Response: As discussed in the response to Issue 2, the Act does not

require the Service to possess detailed or extensive information on the

first two factors in order to make a listing determination. However,

the Service has concluded that there is insufficient information

available to substantiate the present existence of this species.

Issue 4: A few respondents stated that the Alabama sturgeon did not

need Federal protection because Alabama State law provided sufficient

protection for the species.

Response: Alabama State law does prohibit take and possession of

the Alabama sturgeon without a State scientific collecting permit.

However, this law does not protect the species from other threats.

Federal listing would provide significant additional protection for the

species by requiring Federal agencies to consult with the Service when

projects they fund, authorize, or carry out may adversely affect the

Alabama sturgeon. In addition, listing would make section 6 funding

under the Act available to the State of Alabama for Alabama sturgeon

recovery activities.

Issue 5: One respondent contended that listing the sturgeon would

have a significant effect on the cost and duration of the U.S.

Department of Agriculture's (USDA) boll weevil eradication program.

Response: In a March 23, 1994, letter, the Service informed the

USDA of specific pesticide use restrictions that USDA must meet in

order to avoid adverse effects to listed aquatic species by their boll

weevil eradication program. As the Alabama sturgeon inhabited the same

riverine systems as other federally listed aquatic species covered by

the March letter, the Service does not believe that listing the Alabama

sturgeon would have a separate or significant impact on the cost or

duration of the boll weevil eradication program.

Issue 6: Several respondents stated that listing the sturgeon would

require changes in the State's water quality standards.

Response: 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 were ever to be 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 Environmental Protection Agency (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 Clean Water

Act of 1977 (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, based on current information, the

need for changes in State water quality standards would not have

increased if the species had been listed.

Issue 7: A respondent stated that if the Alabama sturgeon was

listed the resulting recovery plan would restrict land use practices.

Response: Recovery plans do not impose restrictions on private land

use practices. However, as there is a strong, direct correlation

between poor land use practices and unhealthy aquatic ecosystems, the

Service encourages landowners to consider any impacts their activities

might have on aquatic resources. A recovery plan for the sturgeon would

likely address this issue and suggest best management practices for

various land uses. Recovery plan development would proceed under the

policy announced by the Service on July 1, 1994 (59 FR 34272); this

policy provides, among other points, for participation by all

stakeholders in the development of a plan and the minimization of the

social and economic impacts of its implementation.

Issue 8: Several respondents stated that listing the sturgeon would

adversely impact the gravel-mining industry.

Response: 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 River

and Harbors Act of 1899 (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 (see ``Background'' section of this notice for a more detailed

discussion of this fish's life history and biology). Thus, mining of

this stable substrate could threaten the species. However, the Service

believes the 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

would have been 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, if the

species were to have been listed. 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.

Issue 9: Several respondents were concerned that if the Alabama

sturgeon were listed anyone could file a class action suit and stop a

Federal project (such as maintenance dredging) or stop the issuance of

discharge permits.

Response: Citizen suits, not class action suits, are available

under the Act. However, it is unlikely that suits challenging

activities already determined by the Service not to be likely to

jeopardize the continued existence of a species would be successful.

Issue 10: A few respondents felt that the Service should not change

its position on various issues addressed within the proposed rule after

the rule had been published.

Response: The Service has modified its position on a number of

issues addressed in the proposed rule; these changes are reflected in

this final decision document (see the response to Issue 39). As new

information becomes available, the Service, as part of its review

process, is expected to and should modify and clarify its position from

what was stated in the proposed rule. This is a normal procedure. A

species is considered for Federal protection through the proposed rule

process as a means of soliciting comments. The period in which comments

are solicited in a proposed rule is typically 60 to 90 days but may be

much longer, as was the case with the proposed rule for the Alabama

sturgeon. The Service is then expected and required to modify and

clarify its position based on any pertinent comments that the Act

allows the Service to consider.

Issue 11: Some respondents wanted to know if the Alabama sturgeon

has any economic value.

Response: The Alabama sturgeon, according to historic records, once

sustained a significant commercial fishery (see the response to Issue

18 and the ``Background'' section of this notice); if the species is

recovered, it may again be a valuable economic resource. However,

section 4(b)(1)(A) of the Act requires that a decision to list a

species shall be based solely on the best scientific and commercial

data available on the species' status. Therefore, the Service cannot

weigh a species' economic value when it is being considered for

protection under the Act.

Issue 12: Several respondents wanted to know who would make the

final listing decision.

Response: The decision on whether to add a species to the Federal

list of endangered and threatened wildlife and plants (50 CFR part 17)

is made by the Director of the Service under authority delegated by the

Secretary of the Interior.

Issue 13: Several respondents supported the proposed rule and urged

the Service to protect the Alabama sturgeon.

Response: The Service finds that such action is not presently

supportable but will continue to survey for the sturgeon and can

repropose its listing at any future time should sufficient information

that the species still exists become available.

Issue 14: One respondent stated that the decline of the sturgeon

was an early warning sign of a decline in the Alabama River's

ecosystem.

Response: The Service agrees that the sturgeon's decline over the

past 100 years or more is likely another warning that the ecosystem may

be in trouble (see the ``Background'' section of this notice).

Issue 15: Several respondents felt that there was no firm evidence

that the Alabama sturgeon still existed and therefore should not be

listed.

Response: An Alabama sturgeon was captured in December 1993 and

comments were received from scientists pertaining to the species'

continued existence (see chronological history of the proposal in the

above ``Previous Federal Actions'' section for a further discussion of

this issue). Based on all available information, the Service does not

assume that the Alabama sturgeon still exists, even in low numbers. It

is possible that future surveys will reveal an existing population of

this fish. There are numerous other examples of the rediscovery of

fishes long thought to be extirpated or extinct in the scientific

literature (Kuhajda, in litt., 1994).

Issue 16: Several respondents felt it was disrespectful that

Service personnel were not present in the hearing room during the

entire January 31, 1994, hearing, and some respondents felt that

Service personnel should have been present at all times so they could

hear every comment that was made.

Response: Senior-ranking Service personnel (a Deputy Director from

the Service's Washington Office and two Assistant Regional Directors

from the Service's Southeast Regional Office) were present in the

audience during the hearing in question. This represents a greater

Service presence than is normal or required by the public hearing

process. Furthermore, transcripts of all oral statements made during

the public hearing have been reviewed by the Service in making this

final decision.

Issue 17: Some respondents questioned the Service's use of life

history and habitat preference information from related species to make

assumptions regarding the behavior of the Alabama sturgeon. Other

respondents provided copies of some sturgeon publications that the

Service did not reference in the ``References Cited'' section of the

proposed rule and felt the Service should use all relevant papers on

sturgeon species from the Mississippi River system.

Response: It is a common practice in science to use information on

closely related species to help form judgments on the needs of rare

species where little information exists (Mayden and Kuhajda, in press).

For example, when the Service was researching reintroduction techniques

for the rare California condor and whooping crane, the Service used the

related Andean condor and sandhill crane as substitutes, respectively.

Certainly, specific studies of a species would be the ideal. However,

when a species is rare and little data exist, information on related

species provides valuable insights. Most of the inferences regarding

the Alabama sturgeon's life history and environmental requirements were

derived from studies of the closely related shovelnose sturgeon.

The Service appreciates receiving additional information on the

biology of sturgeons from the Mississippi River system. The Service has

incorporated some information from these publications, where

appropriate. However, the Act does not require the Service to cite

every publication on related species in order to make a determination

that a species qualifies for the Act's protection.

Issue 18: One respondent stated that the Service should not use an

``arcane'' report that is a century-old in its assessment of the

historic abundance of the Alabama sturgeon.

Response: The Service did use a nearly century-old report to

Congress concerning commercial fish harvests from interior waters of

the United States (U.S. Commission of Fish and Fisheries 1898) in

concluding that the Alabama sturgeon was historically more common in

the Mobile River system. This 1898 report, which estimated a commercial

Alabama sturgeon harvest of 18,000 kg (39,500 lb) from the Alabama

River, provides valuable historic insight into the Alabama sturgeon's

abundance at the turn of the century. As discussed in the responses to

Issues 2, 11, and 27, the Service is required by the Act to make a

listing determination utilizing the best available scientific and

commercial information. Thus, the Service concludes that it was

appropriate to use these available commercial fisheries data as to the

former historical abundance of this sturgeon.

Issue 19: Several respondents were concerned that Service

biologists contacted individuals and reporters to discuss the listing

and tried to sway public opinion concerning issues that developed

subsequent to publication of the proposed rule. This concern was

expressed particularly with reference to the Service's explanation

regarding the extent of any impact the listing might have on

maintenance dredging and navigation in the Mobile River system and the

Tennessee-Tombigbee Waterway (TTW).

Response: The proposed rule stage of the listing process provides

an opportunity to gather information on a species and to discuss the

merits and effects of protecting that species under the Act. During the

proposed rule stage, misconceptions often develop regarding the

potential impacts of the listing on existing programs and activities.

When a misconception exists or when the Service recognizes that the

media, local officials, or others have made erroneous statements, the

Service is obligated to inform the public that a misconception or

misinformation exists.

For example, the Service stated in the proposed rule that

maintenance dredging was a threat to the Alabama sturgeon. This

statement was interpreted by many to mean that if the fish were listed,

maintenance dredging would be stopped, navigation would cease, and as a

result the region would be left in economic ruin. The Service agrees

that if navigation in the Mobile River system were stopped, the

economic impact would be tremendous. However, the Service does not

believe nor did it intend to imply that maintenance dredging for

navigation and the Alabama sturgeon cannot coexist; they can coexist,

and the Service pledges to continue working with the Corps toward this

end (see the response to Issues 1, 46, and 47 for a detailed discussion

of why listing would not have significantly affected maintenance

dredging or navigation).

Section 7 of the Act and implementing regulations (50 CFR part 424)

make a clear distinction between activities that may adversely affect a

species and activities that are likely to jeopardize a species'

continued existence. Federal agencies are required to avoid the

likelihood of jeopardizing a listed species' continued existence, but

the Act does not require Federal agencies to avoid all negative impacts

to a listed species. Thus, at public hearings, in interviews with

reporters, and during conversations with individuals and agencies,

Service biologists attempted to clarify this issue regarding any listed

species. These attempts at clarification were not improper.

Issue 20: A few respondents stated that the Act should balance the

needs of listed species with the needs of people.

Response: Since the Act's inception in 1973, the Service has

consulted on tens of thousands of projects and has developed a long

record of balancing the needs of species with the needs of society.

Section 7 of the Act requires the Service to assist Federal agencies in

determining whether their actions will likely jeopardize the continued

existence of listed species. However, the Act also calls for the

Service to recommend alternative courses of action that are protective

of the species but still allow for project objectives to be met. Only a

few situations have arisen in the past 2 decades where disagreements

between the Act and development interests could not be resolved. In all

other cases, the Service, through the cooperative efforts of

governmental agencies, industry, and individuals, was able to reach

equitable solutions.

If after consulting in good faith the Service and the Federal

agency cannot resolve a jeopardy situation, the Act provides a further

means to balance human needs with the needs of species. Section

7(h)(1)(A)(ii) provides for exemptions to the requirements of the Act

when, among other things, the benefits of a Federal action clearly

outweigh the benefits of an alternative course of action that would

conserve the species.

The Service's section 7 consultation history in the State of

Alabama provides a good example of how the Service has been able to

balance the needs of species and people in section 7 consultations. The

citizens of Alabama have been coexisting with many endangered species

for a number of years. As of November 30, 1994, the State of Alabama

had the fourth largest number of federally listed species (88) of any

State in the nation. From 1988 to 1993 the Service's Daphne, Alabama,

Field Office, reviewed about 10,000 Federal actions in Alabama for

compliance with the Act. During that time period, they issued only one

jeopardy biological opinion that resulted in stopping a project. In

that particular case, there were no reasonable and prudent alternatives

to the proposed action; the project proponent elected to withdraw the

project, rather than initiate the Act's exemption process (50 CFR parts

450-453).

Issue 21: Scientists who closely examined the data that were used

to describe the Alabama sturgeon generally agreed that Williams and

Clemmer (1991) made statistical and procedural errors in their

analysis. Some biologists, upon examination of those data and

additional data to that provided by Williams and Clemmer (1991),

concluded that the Alabama sturgeon was still a valid species. Other

biologists, based on their analyses, maintained that the Alabama

sturgeon and the shovelnose sturgeon (S. platorynchus) were the same

species.

Response: Ichthyologists provided considerable information

concerning the taxonomic status of the Alabama sturgeon during the

comment period (see the ``Background'' section of this notice for a

discussion of this material). However, all of the taxonomic information

has consisted of unpublished reports; none of this taxonomic

information has been subjected to peer-review and accepted for

publication in a scientific journal, with the exception of the study by

Mayden and Kuhajda (in press). The description of the Alabama sturgeon

as a full species by Williams and Clemmer (1991) is the only taxonomic

account that has been published in a peer-reviewed scientific journal.

However, the study by Mayden and Kuhajda (in press) corroborates the

determination of Williams and Clemmer (1991) that the Alabama sturgeon

is a distinct species. Thus, until such time that the Alabama

sturgeon's current taxonomic status is revised in an appropriate peer-

reviewed scientific journal, the Service will consider the Alabama

sturgeon (S. suttkusi) to be a full species that is distinct from the

shovelnose sturgeon (S. platorynchus) (see the response to Issue 22 for

a discussion of why the Alabama sturgeon would still qualify for

protection under the Act even if it were determined to be a subspecies

or population of the shovelnose sturgeon).

As indicated in the Background section, the Service has received a

very recent study report prepared for the Corps of Engineers and the

Service (Genetic Analyses 1994). The study compared a number of nuclear

DNA markers for the three Scaphirhynchus sturgeon and found no

measurable difference between pallid and shovelnose sturgeons but

significant differences between those sturgeons and the one Alabama

sturgeon. Further, this study does show that the single specimen of

Alabama sturgeon captured in 1993 was considerably different from

pallid and shovelnose sturgeons. This genetic study also indicated that

another specimen of Alabama sturgeon would very likely provide

conclusive evidence of these consistent differences.

Issue 22: Several respondents recognized that if the Alabama

sturgeon's taxonomic status could not be resolved, the Act would allow

the Service to list the Alabama sturgeon as an endangered subspecies or

distinct population of the shovelnose sturgeon (S. platorynchus).

However, opinions differed greatly concerning the appropriateness of

such a listing. A few respondents stated that the Service should defer

any decision to list the Alabama sturgeon until a full taxonomic review

of the species is completed.

Response: Taxonomic questions regarding the Alabama sturgeon's

status as a full species have been raised, and the Service admits that

there is controversy surrounding this issue. However, as discussed in

the response to Issue 21, the only peer-reviewed scientific publication

on the Alabama sturgeon's taxonomic status is Williams and Clemmer

(1991). Further, a study by Mayden and Kuhajda (in press), which has

been accepted for publication in a peer-reviewed scientific journal,

corroborates the determination of Williams and Clemmer (1991) that the

Alabama sturgeon is a distinct taxonomic species. Upon publication of

the study by Mayden and Kuhajda (in press), two peer-reviewed

scientific publications will support the distinct taxonomic status of

the Alabama sturgeon.

The Alabama sturgeon (S. suttkusi) has been recognized in both the

proposed rule, the June 21, 1994, notice of extension, and this notice

of withdrawal as a distinct species, not a population or subspecies

(see the response to Issue 21 and the ``Background'' section of this

notice). However, the Act (section 3(15)) provides for listing

subspecies or distinct population segments of vertebrate species as

endangered or threatened. Thus, if the Alabama sturgeon is subsequently

recognized as a distinct subspecies or population segment of the

shovelnose sturgeon (S. platorynchus), it would still qualify as being

eligible for the Act's protection. This second conclusion is based on

the fact that, even if the sturgeon in the Mobile River system is the

shovelnose sturgeon and not recognized as a subspecies of that species,

it is a distinct population segment of a vertebrate species and is a

population that may be in danger of extinction (see the ``Summary of

Factors Affecting the Species'' section of this notice).

To explain further, all members of the genus Scaphirhynchus are

freshwater fish (Bailey and Cross 1954), and there are no known records

of any member of this genus in marine waters or the intermediate rivers

between the mouths of the Mississippi and Mobile Rivers. Thus, if the

Alabama sturgeon's taxonomy is subsequently revised to population

status in a peer-reviewed scientific journal and the revision is

generally accepted by the scientific community, the Service would

recognize that information to reflect the most current nomenclature.

Issue 23: A few respondents presented a list of potential impacts,

including impacts to recreation, flood control, existing interstate

water disputes, and numerous other water-related issues. However,

little specific information was presented to indicate how the listing

would impact these activities.

Response: Without specific information on how these activities

would have been impacted if this species had been listed, the Service

is unable to evaluate the extent of the impacts and in any case is not

allowed to consider such impacts when determining any species to be

endangered or threatened. However, the Service does not foresee

significant impacts to these activities if the Alabama sturgeon were to

be listed in the future.

Issue 24: One respondent commented that the Service should not list

another species because the Service has a poor record of recovering

species and the Service cannot take care of all the species already on

the list.

Response: As outlined in the response to Issue 2, the Act allows

the Service to consider only information related to the species' status

when deliberating as to whether a determination of endangered or

threatened status is warranted under the Act. Therefore, the Service

cannot and does not consider its historic recovery record or its

current recovery workload in determining whether a species deserves

protection of the Act.

Issue 25: Several respondents commented that, as the Service had

not prepared a Regulatory Impact Analysis or complied with the

Regulatory Flexibility Act, it could not proceed with the listing.

Response: In dealing with this rulemaking process, the Service has

complied with all applicable laws, regulations, and departmental

guidance. Preparation of a Regulatory Impact Analysis was an element of

Executive Order 12291, which was revoked by Executive Order 12866. The

Service is exempt from the requirements to comply with the Regulatory

Flexibility Act with respect to the listing process under section 4 of

the Act in accordance with the intent of Congress.

Issue 26: There were allegations from some respondents that the

minimum flow requirement of 90 cubic meters per second (cms) (3,000

cubic feet per second (cfs)) for the Alabama sturgeon, which was stated

in the proposed rule, was arrived at arbitrarily. There was also

concern that if any minimum flow releases were necessary, substantial

loss of revenue from hydropower facilities at Robert F. Henry and

Millers Ferry Locks and Dams would occur and that hydroelectric dams

further upstream in the Alabama River system could also be affected by

the listing.

Response: 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 figure of approximately 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 information 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 6912 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 (FERC)-ordered flow

patterns, are likely adequate to sustain any 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 judgment at this time is that a combined 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,

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) would have been suggested for the benefit of the

sturgeon nor would they have been anticipated by the Service as a

result of listing. Thus, without changes in flow releases from power-

generating dams, there would have been no loss of electrical power

revenue resulting from any listing of the Alabama sturgeon.

Issue 27: Numerous respondents maintained that the listing of the

Alabama sturgeon would devastate Alabama's economy and requested that

the Service consider economic, social, or other impacts that might

occur if the Alabama sturgeon was listed. They also requested that the

Service, as a result of these forecasted impacts, withdraw the proposal

to list the Alabama sturgeon.

Response: Section 4(b)(1)(A) of the Act requires the Service to

base its decision on whether to list a species solely on the best

scientific and commercial data available on the species' status and

precludes the Service from considering economic or other impacts that

might result from the listing. Public comments directed to economic or

other impacts are outside the scope of topics that the Service can

consider in making any final rule determination. However, even though

economic impacts cannot be considered in the listing process, the

Service believes that the impact from a listing action on the region's

economy would have been minimal (see the responses to Issues 1, 6, 26,

30, 46, and 47).

Issue 28: In the proposed rule, the Service maintained that

channel-training devices could be used to further reduce the need to

conduct extensive maintenance dredging operations in the Mobile River

system. Some respondents disagreed, stating that the Corps was using as

many channel-training devices as was necessary.

Response: 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 believe that more

training devices would not be required to avoid jeopardy to the Alabama

sturgeon, if ever listed in the future.

Issue 29: Several respondents expressed concern as to why non-

Service biologists were permitted only 15 minutes to examine the dead

Alabama sturgeon captured in December 1993 and why the Service decided

that live tissue samples could not then be taken from the fish.

Response: The Service concedes that the 15 minutes granted to

biologists associated with the Coalition to examine a specimen of a

rare, poorly known sturgeon on or about January 7, 1994, may have been

an insufficient amount of time in which to make a detailed

identification. However, a short time for examination was considered

best in order to prevent significant thawing of the frozen specimen and

thus prevent further deterioration. Additionally, the 15-minute time

interval was mutually agreed upon by biologists with both the Coalition

and the Service but was negotiable, as subsequently clarified in a

letter from the Service to the Coalition dated January 19, 1994. This

letter stated, in part, ``* * * additional time could have been

arranged [to examine the sturgeon] had there been a request for such.''

No official request was made to the Service or hatchery staff for

additional time to examine the fish prior to or during the Coalition's

visit to the State of Alabama's Marion Fish Hatchery. No Service

representative was present for this examination, but a representative

from the Corps was in attendance to view the sturgeon. Hatchery

personnel were informed of the agreement between the Coalition and the

Service and thus allowed the Coalition representatives only the

previously agreed-upon 15 minutes in which to study the specimen.

The Coalition sent a letter to the Service on December 7, 1993,

requesting fresh blood and muscle tissue samples from the live sturgeon

that had been captured a few days earlier. In a letter dated December

17, 1993, the Service stated that it did not take muscle and blood

samples from the sturgeon because of the intrusive nature of the

sampling and the potential to traumatize or cause the death of the

fish. However, fin clips were made and frozen for future study. When

the Coalition received word that the sturgeon had been found dead on

December 31, 1993, they arranged an examination of the fish. A January

6, 1994, letter from the Coalition and a January 12, 1994, letter from

the Corps formally requested that the Service provide tissue samples

from the now-frozen sturgeon and subsamples of the fin clips obtained

prior to its death.

However, Service biologists decided that no intrusive tissue

samples should be taken from the sturgeon prior to the necropsy that

was to be conducted at the National Biological Survey's laboratory in

Leetown, West Virginia. It was stated in Service letters dated January

18, 1994, to the Corps and January 19, 1994, to the Coalition that

samples of tissue removed from the fish might jeopardize any chance for

a determination of its cause of death but that a muscle tissue sample

would be provided to Coalition biologists after the necropsy was

completed. Immediately after the examination of the fish by biologists

representing the Coalition, the carcass was shipped to the West

Virginia laboratory. Following the necropsy, muscle tissue samples were

sent to Coalition biologists and to the Corps.

Issue 30: Some respondents expressed concern regarding the

potential effects the listing of the Alabama sturgeon would have on

coalbed methane-associated industries.

Response: 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 RHA (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 (FWCA), 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 of the

RHA 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 National Pollution and

Discharge Elimination System (NPDES) guidelines. As the last known

occupied habitat of the Alabama sturgeon existed 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.

Issue 31: One respondent stated that he had seen sturgeon swim

through locks and that the recently caught Alabama sturgeon might

actually be a shovelnose sturgeon that had passed down the TTW from the

Tennessee River system.

Response: Based upon morphological characters that can be used to

differentiate the two sturgeon populations (see the ``Background''

section of this notice), various ichthyologists verified that the

sturgeon caught in the Alabama River in December 1993 was an Alabama

sturgeon. In addition, it is true that the opening of the TTW

potentially facilitates the movement of certain fishes between the

Tennessee and Tombigbee Rivers. However, passage of a shovelnose

sturgeon from the Tennessee River system through the TTW, down the

entire length of the Tombigbee River, and up the lowermost portion of

the Alabama River to where the specimen was captured would require

swimming downstream through a total of 12 locks. The shovelnose

sturgeon is thought to migrate limited distances (see the

``Background'' section of this notice), but the likelihood of an

individual sturgeon traversing a distance of over 645 kilometers (km)

(400 miles (mi)) and getting caught in a gill net in the Alabama River

is remote. Furthermore, populations of the shovelnose sturgeon in the

lower Tennessee River are thought to be low, based on reports from

commercial fishermen (John Conder, Tennessee Wildlife Resources Agency,

personal communication, 1994).

Issue 32: One respondent quoted from a newspaper article that

stated the Act's scatter-shot attempt to preserve everything made

little sense and that unless the law was changed, biologists eventually

would identify enough rare species for Federal protection to make

everywhere off limits to humans. Another respondent noted that nature

itself has destroyed the vast majority of life forms and that

extinction is an inevitable fact of evolution.

Response: The Act specifically states that the Service is to list

those species that are in danger of extinction throughout a significant

portion of their range and that only the best biological information

available can be used in these determinations (see the responses to

Issues 2 and 27). At the present time, over 900 native species have

been listed and tens of thousands of consultations (informal or formal)

have been made with only a small percentage creating significant

problems for the project or local economy. While it is true that

catastrophic events over geological time have resulted in the

extinction of millions of species since life evolved on our planet, the

rate of extinctions in the past couple of centuries has accelerated

dramatically as a direct result of human activities.

Issue 33: One respondent noted that the listing of the Alabama

sturgeon would impact individuals conducting private activities by

forcing them to pay for implementing costly habitat conservation plans

(HCPs).

Response: The Service assumes that these activities are land-use

activities that have no Federal permit requirement or funding source.

Section 9 of the Act lists prohibited activities with respect to

endangered species, including ``take'' (e.g., kill, wound, harm).

Section 10(a) of the Act provides that private individuals whose

activities would incidentally take a species may obtain an ``incidental

take permit'' provided they prepare and are able to implement a habitat

conservation plan (HCP) that meets the requirements of section

10(a)(2)(B). However, there is no need to prepare and implement an HCP

unless it is established that an individual's activity would

incidentally result in the take of a listed species.

Issue 34: Some respondents noted that some sturgeon species

actually might benefit from deep-water habitats created by various

dredging activities.

Response: Other sturgeons have been documented from deep dredge

holes of rivers. However, dredging should not be construed as an

activity that is totally compatible with the well-being of the

sturgeons (see the responses to Issues 1 and 8). Certain dredging

activities may compromise foraging and spawning habitat for a sturgeon

by removing relatively stable substrate and destabilizing adjacent

habitat. Dredging, therefore, should not necessarily be viewed as a

means of creating deep-water habitats with stable substrates for any

sturgeon.

Issue 35: Several respondents stated that commercial fishing should

be implicated in the overall decline of the Alabama sturgeon. Another

respondent speculated that overexploitation of the paddlefish (Polyodon

spathula) for its eggs in the 1980s may have resulted in an increased

incidental catch of the Alabama sturgeon. This may have contributed to

the sturgeon's decline.

Response: There is an historic account of commercial harvest for

sturgeons in the Mobile River system at the turn of the century (U.S.

Commission of Fish and Fisheries 1898) that stated that 18,000 kg

(39,500 lb) of Alabama sturgeon were harvested. However, without

historic population information, the Service cannot conclude that the

Alabama sturgeon was overharvested during that period. Furthermore, the

Service has no evidence, other than anecdotal reports, that incidental

catches of the Alabama sturgeon occurred during the paddlefish fishery

in the 1980s and contributed to the sturgeon's decline (see Factor B in

the ``Summary of Factors Affecting the Species'' section of this

notice). The Service believes that massive alteration of the river's

aquatic ecosystem has played the most significant role in the Alabama

sturgeon's decline (see Factor A in the ``Summary of Factors Affecting

the Species'' section of this notice and the response to Issue 36).

However, the Act does not require that the specific causative agents be

known or even be well understood for a species to qualify for Federal

protection.

Issue 36: Several respondents stated that the Service

overemphasized the impact that recent impoundments may have had on the

decline of the Alabama sturgeon.

Response: The Service acknowledges that the specific causes of the

Alabama sturgeon's current status are poorly understood. However, the

Service believes that it is reasonable to conclude that the

impoundments constructed on the Alabama River in the late 1960s and

early 1970s likely played a significant role in the decline of the

Alabama sturgeon (see Factor A in the ``Summary of Factors Affecting

the Species'' section of this notice). Additionally, even if reservoirs

were not a factor, the Act does not require that the Service know all

the specific causes of a species' decline before the Service can decide

to list the species. The Act requires only that the Service use the

best available information on the species' status to support the

conclusion to list any species that is in danger of extinction (see the

response to Issue 2). With respect to the Alabama sturgeon, as

discussed under Factor A in the ``Summary of Factors Affecting the

Species'' section of this notice, the best available information

demonstrates that it has suffered a dramatic decline in both population

size and range over the past 100 years, even if there are some

uncertainties as to the cause(s) of this decline.

Issue 37: Several respondents stated that the Service should not

use anecdotal information in this rulemaking process.

Response: The Service has included some anecdotal information in

this notice. However, the decision whether to list this species was not

been based on anecdotal information (see the ``Summary of Factors

Affecting the Species'' section of this notice).

Issue 38: One respondent contradicted statements made by the

Service in the proposed rule that the shovelnose sturgeon had changed

its diet, allegedly because of the effects of channelization

activities.

Response: The Service concedes that the reference in the proposed

rule to a shift in the shovelnose sturgeon's diet, attributed to

channelization activities, was erroneous. Any assertion that changes in

the shovelnose sturgeon's food habits resulted from channelization

activities has been deleted from this notice and was not considered

when making the decision to withdraw the proposal.

Issue 39: Several respondents expressed concern over differences

between how the Service addressed certain issues in the June 15, 1993,

proposed rule and how the Service addressed these issues in subsequent

oral presentations and official documents, especially the June 21,

1994, notice of a 6-month extension of the deadline and reopening of

the comment period.

Response: The Service has received numerous comments and has had

discussions with other Federal agencies (including the Corps) regarding

the Alabama sturgeon's biology and taxonomic status and how listing the

species could impact and be impacted by Federal activities. When

clarifying information was provided by all these contacts, the Service

considered it and has altered, as it should, its position on some

factors addressed in the proposed rule (see the response to Issue 10

for a further discussion of this issue). These modifications of Service

positions were partially reflected in the June 21, 1994, notice of a 6-

month extension of the deadline. However, a full discussion of the

Service's position on these issues, as influenced and modified by

public comments, is contained in this notice.

Issue 40: A few respondents stated that the June 21, 1994, notice

of a 6-month extension of the deadline did not make it clear to them

what type of comments the Service was seeking.

Response: The Service stated in the June 21, 1994, notice of a 6-

month extension of the deadline that the Service was primarily seeking

additional information on the population status of the Alabama

sturgeon. However, in the development of this notice, the Service has

considered all the comments received through October 17, 1994, the end

of last open comment period.

Issue 41: In the June 15, 1993, proposed rule, the Service referred

to the sturgeon that was being proposed for endangered species status

as the ``Alabama sturgeon.'' However, in the June 21, 1994, notice of a

6-month extension of the deadline, the Service referred to this same

sturgeon as the ``Mobile River system population of the Alabama

sturgeon.'' Several respondents stated that this change created

confusion as to whether the Service was proposing a species or a

population of a species for Federal protection.

Response: The reference to the Alabama sturgeon as the ``Mobile

River system population of the Alabama sturgeon'' in the June 21, 1994,

notice was an error, and the Service regrets any confusion that may

have been generated by this statement. The Alabama sturgeon was

proposed as a distinct taxonomic species for endangered species status

in the June 15, 1993, proposed rule, and the Alabama sturgeon was

recognized as a full species in the June 21, 1994, notice (see 59 FR

31972, col. 3, lines 4-11), as well as in this notice (see the

``Background'' section of this notice and the response to Issues 21 and

22).

Issue 42: Several representatives of industries located along the

Alabama River commented that they had, through their NPDES permit

activities, collected large numbers of fish from the Alabama River, but

they had never seen a sturgeon.

Response: Considering the rarity of the Alabama sturgeon and the

difficulty of collecting the species as shown by the effort expended by

the Service and the State of Alabama over the past several years that

resulted in the capture of only one Alabama sturgeon, the Service is

not surprised that fish collections associated with NPDES activities

failed to encounter this species (see the ``Background'' section of

this notice).

Issue 43: Several respondents stated that the Service should extend

the comment period beyond the October 17, 1994, deadline to allow for

public comments regarding the Service's Alabama sturgeon collection

efforts.

Response: The comment period on the Alabama sturgeon proposed rule

was reopened from September 15, 1994, through October 17, 1994

(September 15, 1994; 59 FR 47294) to allow for additional scientific

peer review regarding the Alabama sturgeon's continued existence. The

closing date of the comment period was set at October 17, 1994, to

provide sufficient time for the Service to review all available

information and comments and then draft this notice in order to publish

the document by the December 15, 1994, deadline. The time allowed for

the development and review of the document is far less than is normally

provided, and the Service believed that the comment period could not

have been extended beyond October 17, 1994, without compromising the

Service's ability to meet the December 15, 1994, publication deadline.

Issue 44: A few respondents raised the issue of the viability of

the remaining Alabama sturgeon population, and one individual commented

that the Service should not list the Alabama sturgeon because there are

not enough of them left in the river to maintain a viable population.

Response: The Alabama sturgeon population was significantly reduced

in numbers, and there is not enough information presently available to

conclude that the species still exists.

Issue 45: One respondent stated that the Service had used Williams

and Clemmer (1991) as the taxonomic authority for the Alabama sturgeon

in the proposed rule but used Mayden and Kuhajda (in press) as the

taxonomic authority in the notice of a 6-month extension of the

deadline.

Response: The Service did not intend to imply that the study by

Mayden and Kuhajda (in press), which had not been accepted for

publication at that time, was the taxonomic authority for the Alabama

sturgeon when the notice of a 6-month extension was published. As

referenced in Issue 21 and 22, as well as in the ``Background'' section

of this notice, Williams and Clemmer (1991) have the only peer-reviewed

scientific publication regarding the taxonomic status of the Alabama

sturgeon. Therefore, the Service continues to consider Williams and

Clemmer (1991) to be the taxonomic authority for the Alabama sturgeon.

However, Mayden and Kuhajda (in press) has recently been accepted for

publication in a peer-reviewed scientific journal. Upon publication of

the study by Mayden and Kuhajda (in press), two peer-reviewed

scientific publications will support the Service's contention that the

Alabama sturgeon is a distinct taxonomic species.

Issue 46: Concern was expressed that listing the Alabama sturgeon

would significantly impact commercial barge traffic if the Corps could

not remove rock shelves from the navigation channel.

Response: 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 informally discussed the potential

impacts to the Alabama sturgeon of removing these rock shelves, and

both agencies agree that, if the Alabama sturgeon were ever listed,

section 7 consultation would 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

significant period of time prior to the next dredging season for both

agencies to consider the timing and habitat improvements that may be

possible by the design and construction of the remaining shelf after

excavation and by the selective placement of the excavated material.

Thus, the Service does not anticipate that any consultations would

result in a jeopardy situation or result in delays in these maintenance

dredging activities should the species ever be listed.

Issue 47: Several respondents expressed concern that listing the

Alabama sturgeon could significantly impact maintenance dredging for

non-Federal activities.

Response: The Corps authorizes maintenance dredging for non-Federal

navigation projects. Although these projects are usually on a much

smaller scale than 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 (see

``Background'' section of this notice). They are generally not

associated with the unconsolidated substrates that settle in slower

current areas. Therefore, removal and disposal of unconsolidated

materials is not perceived 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 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 Issue 1,

temporary increases in turbidity associated with maintenance dredging

activities are not currently believed to adversely effect 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.

Issue 48: Comments from the Corps and others concerned the effect

of listing the Alabama Sturgeon would have upon other Corps regulatory

activities, such as authorizing pipeline crossings, piers, wharves, and

small boat channels. These non-Federal activities are regulated through

the Corps' regulatory program and evaluated on a case by case basis.

Thus, concern has been expressed that if the Alabama sturgeon were ever

listed permit applicants would be burdened by time delays and by

requirements to conduct sturgeon surveys.

Response: 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. 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 may have been delayed by a requirement to

conduct endangered species surveys (Alabama sturgeon, if listed, 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.

Summary of Factors Affecting the Species

After a thorough review and consideration of all available

information, the Service has determined that there is insufficient

evidence available to justify listing the Alabama sturgeon. Procedures

found at section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and

regulations (50 CFR part 424) promulgated to implement the listing

provisions of the Act were followed. A species may be determined to be

an endangered or threatened species 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) are as

follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of Its Habitat or Range

The Alabama sturgeon has experienced a highly significant decline

in the last 100 years. An 1898 report to Congress on commercial fish

harvests from the interior waters of the United States (U.S. Commission

of Fish and Fisheries 1898) estimated a commercial Alabama sturgeon

harvest of 18,000 kg (39,500 lb) from the Alabama River near the turn

of the century. In the 1930s an Alabama Game and Fish News article

(Anonymous 1930) stated that the fish was ``not uncommon.'' However, by

the 1980s and into the early 1990s the Alabama sturgeon had become a

rare component of the Mobile River ecosystem. Burke and Ramsey (1985)

conducted a wide-ranging survey for the fish in the mid-1980s and found

only five individuals; the ADCNR searched the river for the Alabama

sturgeon in 1990, 1991, and 1992, utilizing a variety of sampling gear,

and was unable to capture any specimens (Tucker and Johnson 1991,

1992); and the ADCNR and the Service captured only one Alabama sturgeon

after extensive searches in 1993. There is little question that a

population that could yield 18,000 kg (39,500 lb) of fish at about 1

kilogram (2 lb) each in the late 1890s, only five fish in the early

1980s, and only one fish in the early 1990s has experienced a highly

significant decline.

The distribution or range of the Alabama sturgeon has also been

significantly reduced. Based on a review of historic records by Burke

and Ramsey (1985), the Alabama sturgeon's range once included 1,635 km

(1,022 mi) of the Mobile River system (Black Warrior, Tombigbee,

Alabama, Coosa, Tallapoosa, Mobile, Tensas, and Cahaba Rivers) in

Alabama and Mississippi. During the early to mid-1980s, when Burke and

Ramsey (1985) conducted their Alabama sturgeon status survey, they

estimated that the Alabama sturgeon had been extirpated from over half

(57 percent; 938 km [586 mi]) of its range and that only 15 percent

(243 km [152 mi]) of its former habitat had the potential to support a

good Alabama sturgeon population. They felt that another 19 percent

(310 km [194 mi]) of the fish's remaining potential habitat was

marginal. They were unable to judge the status of another 9 percent

(144 km [90 mi]) of the historic habitat. Since Burke and Ramsey

(1985), there has been only one confirmed Alabama sturgeon captured.

That individual was captured after searches by the ADCNR in 1990, 1991,

and 1992, utilizing a variety of sampling gear (Tucker and Johnson

1991, 1992), and further searches by the ADCNR and the Service in 1993.

It is possible that the Alabama sturgeon may now exist in only a short

reach of the free-flowing Alabama River below the Claiborne Lock and

Dam, where this last specimen was captured.

From a historic perspective, it is likely that not one but many

factors have worked in concert to push the Alabama sturgeon to the

brink of extinction. Land clearing for silviculture, agriculture, urban

and industrial development, and gravel-mining operations have increased

silt loads to the river and altered its water quality. Impoundments

constructed for navigation, recreation, power production, and flood

control have reduced the amount of riverine habitat, blocked spawning

migrations, and changed the river's flow patterns. Uncontrolled

discharges of polluted waste once occurred in the river. An early

commercial fishery, as reported by the U.S. Commission of Fish and

Fisheries (1898), may have played a role in the fish's initial decline.

The physical, chemical, and biological characteristics of the Mobile

River system have been altered, and the Alabama sturgeon, which evolved

long before these changes occurred, has suffered.

The large-river portions of the Mobile River system are controlled

by a series of dams that have changed this once free-flowing river

system into a series of artificial impoundments. When rivers are

dammed, the physical and chemical environment of the impounded waters

changes, and these environmental alterations cause changes in the

river's biological communities. Some species respond favorably to this

altered environment and increase in numbers and range. Other species

that rely on free-flowing large-river habitat for their survival are

reduced in numbers or are eliminated.

As the Alabama sturgeon evolved and adapted to survive in a large,

free-flowing river ecosystem, the construction of reservoirs likely

played a significant role in its decline. The specific mechanisms by

which reservoirs in the Mobile River system may have affected the

Alabama sturgeon are not fully understood, and there is little specific

life history information on the Alabama sturgeon from which to draw

conclusions. However, studies of closely related sturgeons provide some

insight into how the Mobile River system's reservoirs may have impacted

this fish.

The Alabama sturgeon, like the shovelnose sturgeon, probably

migrates upstream to spawn (Becker 1983). The dams in the Mobile River

system likely either block their migration or at least impede it. The

shovelnose sturgeon apparently forages and spawns on relatively stable

substrates (Trautman 1981, Hurley and Nickum 1984, Curtis 1990). As the

impounded river reaches above the dams accumulate silt, any stable

substrate used for spawning could, over a period of time, become

unavailable to the fish. Asian scientists in studies of sturgeons

(genera Acipenser and Huso) (Khoroshko 1972, Zakharyan 1972, Veshchev

1982, Veshchev and Novikova 1983) have reported that reservoirs alter

flows and temperature regimes and that these factors adversely affect

Asian sturgeons by decreasing their growth rates, decreasing spawning

activity, altering gonad development, increasing egg predation,

reducing egg survival, and increasing juvenile mortality. Although the

Asian studies cited above refer to anadromous sturgeons, some of these

same factors may be affecting the Alabama sturgeon.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

As discussed under Factor A and in the ``Background'' section of

this notice, the Alabama sturgeon was commercially harvested around the

turn of the century. Also, there are anecdotal reports of incidental

catches of the Alabama sturgeon as part of a paddlefish fishery in the

1980s (see the response to Issue 35 in the ``Summary of Comments and

Recommendations'' section of this notice). However, without any other

population information, the Service cannot quantify what impact

overfishing may have had on the Alabama sturgeon. The Service believes

that a massive alteration of the river's aquatic ecosystem has played

the most significant role in the Alabama sturgeon's decline and that

commercial harvest is not currently a threat to the species. Alabama

State law requires the immediate release of any incidentally caught

sturgeons. As a result, this sturgeon is currently neither commercially

nor recreationally valuable and is not pursued by humans. Based on

limited numbers, if any, and the difficulty of capture, overutilization

of Alabama sturgeon is unlikely.

C. Disease or Predation

There are no known threats from disease or natural predators. To

the extent that disease or predation occurs, it becomes a more

important consideration as the total population decreases in number.

D. The Inadequacy of Existing Regulatory Mechanisms

Existing Alabama State law precludes the possession of, and

requires the release of, all sturgeons caught with any gear, whether

dead or alive (Burke and Ramsey 1985; Fred Harders, ADCNR, personal

communication, 1991). Although the needs of the Alabama sturgeon, if

ever it becomes protected under the Act, could be considered when

Federal activities are authorized or permitted, there is currently no

requirement within the scope of other environmental laws to

specifically consider the Alabama sturgeon or ensure that a project

will not jeopardize its continued existence.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

In addition to impacts discussed under Factor A, the Alabama

sturgeon's reproductive capability has likely been adversely impacted

by low numbers of mature individuals. As the Alabama sturgeon's range

and population were severely reduced, populations became more scattered

and isolated. This isolation has probably reduced levels of successful

reproduction and also reduced gene flow among populations. As genetic

diversity is reduced, the sturgeon's ability to adapt to adversity has

likely been reduced. Reduction in reproductive success will exacerbate

the problems impacting this fish and, if not reversed, may ultimately

lead to its extinction.

The creation of the TTW has created the potential for the

previously allopatric (geographically isolated) shovelnose sturgeon to

pass between the Tennessee River (Mississippi River system) and the

Mobile River system (see the response to Issue 31 in the ``Summary of

Comments and Recommendations'' section of this notice) and interbreed

with the Alabama sturgeon. However, given the small size of the

populations of both fishes in these artificially connected river

systems and the adversity that dispersing through numerous locks and

dams and swimming hundreds of kilometers creates, the probability of

genetic mixing between the shovelnose sturgeon and the Alabama sturgeon

is presently very low.

The Service has carefully assessed the status of the Alabama

sturgeon, as well as, the best scientific and commercial information

available regarding the past, present, and future threats faced by the

species in making this decision. Based on this evaluation, the Service

has decided that insufficient information is available to justify

listing the Alabama sturgeon (S. suttkusi) at this time. This decision

is based primarily on the lack of evidence that the sturgeon still

exists.

References Cited

Anonymous. 1930. The sturgeon. Alabama Game and Fish News

1930(1):13.

Avise, J.C. 1994. Molecular markers, natural history & evolution.

Chapman & Hall, New York.

Bailey, R.M., and F.B. Cross. 1954. River sturgeons of the American

genus Scaphirhynchus: characters, distribution, and synonymy. Papers

of the Michigan Academy of Science, Arts, and Letters, 39:109-208.

Becker, G.C. 1983. Fishes of Wisconsin. The University of Wisconsin

Press, Madison, WI. 1,053 pp.

Blanchard, P.D. No date [ca. 1994]. Comments on the taxonomic status

of the Alabama sturgeon. Unpublished report. 33 pp.

Blanchard, P.D., and A.A. Bartolucci. 1994. Comments on the

statistical analyses employed to describe the Alabama sturgeon as a

distinct species. Unpublished report. 31 pp.

Burke, J.S., and J.S. Ramsey. 1985. Status survey on the Alabama

shovelnose sturgeon (Scaphirhynchus sp. cf. platorynchus) in the

Mobile Bay drainage. Report to U.S. Fish and Wildlife Service,

Jackson, MS. 61 pp.

Clemmer, G.H. 1983. A status report on the Alabama sturgeon,

Scaphirhynchus. A report to U.S. Fish and Wildlife Service,

Washington, DC. 9 pp.

Curtis, G.L. 1990. Habitat use by shovelnose sturgeon in Pool 13,

upper Mississippi River, Iowa. Master's thesis, Iowa State Univ.,

Ames, IA. 51 pp.

Durkee, P., B. Paulson, and R. Bellig. 1979. Shovelnose sturgeon

(Scaphirhynchus platorynchus) in the Minnesota River. Journal of the

Minnesota Academy of Science 45:18-20.

Genetic Analyses Inc. 1994. Genetic studies of Scaphirhynchus spp.

Unpublished report for the U.S. Army Corps of Engineers, Omaha

District; U.S. Fish and Wildlife Service, Bismarck; U.S. Army Corps

of Engineers, Mobile District. 41 pp.

Haynes, C.G. 1994. Report on the Alabama sturgeon (Scaphirhynchus

suttkusi) stomach content analysis. Unpublished report. 10 pp.

Helms, D. 1973. Progress report on the second year study of

shovelnose sturgeon in the Mississippi River. Project 2-156-R-2,

Iowa Conservation Commission, Des Moines, IA.

Helms, D. 1974. Shovelnose sturgeon in the Mississippi River, Iowa.

Iowa Fisheries Research Technical Series No. 74-3. State

Conservation Commission, Des Moines, IA. 61 pp.

Henry, C.J., and R. Ruelle. 1992. A study of pallid sturgeon and

shovelnose sturgeon reproduction. Report by U.S. Fish and Wildlife

Service, Pierre, SD. 19 pp.

Howell, W.M. 1993. Written comments on proposed endangered status

and designation of critical habitat for the Alabama sturgeon:

proposed rule. Unpublished report. 37 pp. + appendices.

Howell, W.M. 1994. Written comments on proposed endangered status

and designation of critical habitat for the Alabama sturgeon:

proposed rule. Unpublished report. 33 pp. + appendices.

Howell, W.M., P.D. Blanchard, and A. Bartolucci. 1994. A critique of

the written comments submitted by R.L. Mayden and B.R. Kuhajda to

the U.S. Fish and Wildlife Service entitled: ``Reevaluation of the

taxonomic, systematic, and conservation status of the Alabama

sturgeon, Scaphirhynchus suttkusi Williams and Clemmer

(Actinopterygii, Acipenseridae).'' Unpublished report. 67 pp. +

appendices.

Hurley, S.T., and J.G. Nickum. 1984. Spawning and early life history

of shovelnose sturgeon. Project report, Iowa State Univ., Ames, IA.

40 pp.

Hurley, S.T., W.A. Hubert, and J.G. Nickum. 1987. Habitats and

movements of shovelnose sturgeons in the upper Mississippi River.

Transactions of the American Fisheries Society 116:655-662.

Khoroshko, P.N. 1972. The amount of water in the Volga Basin and its

effect on the reproduction of sturgeons (Acipenseridae) under

conditions of normal and regulated discharge. Journal of Ichthyology

12:608-616.

Mayden, R.L., and B.R. Kuhajda. In press. Reevaluation of the

taxonomic, systematic, and conservation status of the Alabama

sturgeon, Scaphirhynchus suttkusi Williams and Clemmer

(Actinopterygii, Acipenseridae). Copeia.

Modde, T., and J.D. Schmulbach. 1977. Food and feeding behavior of

the shovelnose sturgeon, Scaphirhynchus platorynchus, in the

unchannelized Missouri River, South Dakota. Transactions of the

American Fisheries Society 106:602-608.

Moos, R.E. 1978. Movement and reproduction of shovelnose sturgeon,

Scaphirhynchus platorynchus (Rafinesque), in the Missouri River,

South Dakota. Ph.D. dissertation, Univ. of South Dakota, Pierre, SD.

213 pp.

Ramsey, J.S. 1976. Freshwater fishes. Page 55. In: Boschung, H.T.

(ed.), Endangered and threatened plants and animals of Alabama.

Bulletin of the Alabama Museum of Natural History No. 2. Univ. of

Alabama, University, AL.

Ruelle, R., and K.D. Keenlyne. 1993. Contaminants in Missouri River

pallid sturgeon. U.S. Fish and Wildlife Service report, Pierre, SD.

11 pp.

Schill, W.B., and R.L. Walker. 1994. Phylogenetic relationships of

sturgeon inferred from cytochrome b sequences. Unpublished report.

19 pp.

Trautman, M.B. 1981. The fishes of Ohio. 2nd edition. Ohio State

University Press, Columbus, OH. 782 pp.

Tucker, W.H., and L.A. Johnson. 1991. Survey of the Alabama

shovelnose sturgeon in the lower Mobile Bay drainage. Final Report,

Alabama Department of Conservation and Natural Resources,

Montgomery, AL. 5 pp.

Tucker, W.H., and L.A. Johnson. 1992. Survey of the Alabama

shovelnose sturgeon in the lower Mobile Bay drainage. Final Report,

Alabama Department of Conservation and Natural Resources,

Montgomery, AL. 5 pp.

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fisheries of the interior waters of the United States. A report to

the 55th Congress, House of Representatives. Pp. 489-497, 531-533.

U.S. Fish and Wildlife Service. 1994. Technical/agency draft Mobile

River Basin ecosystem recovery plan. Jackson, MS. 128 pp.

Veshchev, P.V. 1982. Reproduction of sterlet, Acipenser ruthenus

(Acipenseridae), in the lower Volga. Journal of Ichthyology 22:40-

47.

Veshchev, P.V., and A.S. Novikova. 1983. Reproduction of the

stellate sturgeon Acipenser stellatus (Acipenseridae), under

regulated flow conditions in the Volga River. Journal of Ichthyology

23:42-51.

Williams, J.D., and G.H. Clemmer. 1991. Scaphirhynchus suttkusi, a

new sturgeon (Pisces: Acipenseridae) from the Mobile Basin of

Alabama and Mississippi. Bulletin of the Alabama Museum of Natural

History 10:17-31.

Zakharyan, G.B. 1972. The natural reproduction of sturgeons in the

Kura River following its regulation. Journal of Ichthyology 12:249-

258.

Zweiacker, P. 1967. Aspects of the life history of the shovelnose

sturgeon, Scaphirhynchus platorynchus (Rafinesque), in the Missouri

River. Master's thesis, Univ. of South Dakota, Vermillion, SD.

Proposed Rule Withdrawal

The Service withdraws the proposed rule of June 3, 1993, (58 FR

33148) to list the Alabama sturgeon as an endangered species and

designate its critical habitat. If sufficient new information becomes

available to demonstrate the present existence of the Alabama sturgeon,

the Service may take action to determine the species to be endangered

in accordance with 50 CFR part 424. For the present, the Service places

this species in Category 2 of its list of candidate species; category 2

is for those species for which sufficient information is not available

to determine whether to proceed with a proposed rule to list or to

consider the species no longer an active candidate (e.g., extinct).

Authority

The authority for this action is the Endangered Species Act of

1973, as amended (16 U.S.C. 1531-1544).

Dated: December 12, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-30859 Filed 12-14-94; 8:45 am]

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