Endangered and Threatened Wildlife and Plants: Proposed Rulemaking to Establish Take Prohibitions for the Threatened Southern Distinct Population Segment of North American Green Sturgeon, 23822-23837 [E9-11945]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 74, Number 97 (Thursday, May 21, 2009)]
[Proposed Rules]
[Pages 23822-23837]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11945]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 223

[Docket No. 070910507-81216-02]
RIN 0648-AV94


Endangered and Threatened Wildlife and Plants: Proposed 
Rulemaking to Establish Take Prohibitions for the Threatened Southern 
Distinct Population Segment of North American Green Sturgeon

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments; notice of availability of 
a draft environmental assessment.

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SUMMARY: Under section 4(d) of the Endangered Species Act (ESA), the 
Secretary of Commerce (Secretary) is required to adopt such regulations 
as he deems necessary and advisable for the conservation of species 
listed as threatened. This proposed ESA 4(d) rule represents the 
regulations that we, the National Marine Fisheries Service (NMFS), 
believe necessary and advisable to conserve the threatened Southern 
Distinct Population Segment of North American green sturgeon (Acipenser 
medirostris; hereafter Southern DPS). We propose to apply the 
prohibitions listed under ESA sections 9(a)(1)(A) through 9(a)(1)(G) 
for the Southern DPS, and we highlight specific categories of 
activities that are likely to result in take of Southern DPS fish. We 
do not find it necessary and advisable to apply the take prohibitions 
to certain categories of activities that contribute to conserving the 
Southern DPS. We also propose a variety of methods by which take of the 
Southern DPS may be authorized.
    We announce the availability of a draft environmental assessment 
(EA) that analyzes the environmental impacts of promulgating these 
proposed 4(d) regulations for the Southern DPS. Finally, we solicit 
comments regarding the draft EA and this proposed rule.

DATES: Comments regarding the proposed rule and supporting documents 
may be sent to the appropriate address or fax number (see ADDRESSES), 
no later than 5 p.m. Pacific Standard Time on July 20, 2009. A public 
hearing will be held promptly if any person so requests by July 6, 
2009. Notice of the location and time of any such hearing will be 
published in the Federal Register not less than 15 days before the 
hearing is held.

ADDRESSES: You may submit comments, identified by RIN 0648-AV94, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal https://www.regulations.gov.
     Facsimile (fax): 562-980-4027, Attn: Melissa Neuman.

[[Page 23823]]

     Mail: Submit written comments to Chief, Protected 
Resources Division, Attn: Melissa Neuman, Southwest Region, National 
Marine Fisheries Service, 501 West Ocean Blvd., Suite 4200, Long Beach, 
CA 90802-4213.
    Instructions: All comments received are a part of the public record 
and will generally be posted to https://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    We will accept anonymous comments (enter N/A in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.
    A list of reference materials regarding this proposed rule can be 
obtained via the Internet at https://www.swr.nmfs.noaa.gov or by 
submitting a request to the Assistant Regional Administrator, Protected 
Resources Division, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 
4200, Long Beach, CA 90802-4213.

FOR FURTHER INFORMATION CONTACT: Melissa Neuman, NMFS, Southwest Region 
(562) 980-4115 or Lisa Manning, NMFS, Office of Protected Resources 
(301) 713-1401.

SUPPLEMENTARY INFORMATION:

Background

    We determined that the Southern DPS is at risk of extinction in the 
foreseeable future throughout all or a significant portion of its range 
and listed the species as threatened under the ESA on April 7, 2006 (71 
FR 17757). At that time we summarized the process for considering the 
application of ESA section 9 prohibitions to the threatened Southern 
DPS. In the case of threatened species, ESA section 4(d) states that 
the Secretary shall decide whether, and to what extent, to extend the 
section 9(a) prohibitions, including those regarding take, to the 
species, and authorizes us to issue regulations we consider necessary 
and advisable for the conservation of the species. Such regulations may 
include any or all of the prohibitions that automatically apply to 
endangered species. Those prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take the 
listed species. The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct. (16 U.S.C. 1532(19)). The term ``harm'' is defined as 
any act which kills or injures fish or wildlife. Such an act may 
include significant habitat modification or degradation that results in 
death or injury of wildlife by significantly impairing essential 
behavioral patterns, including breeding, spawning, rearing, migrating, 
feeding, or sheltering. (50 CFR 222.102).
    Whether take prohibitions or other protective regulations are 
necessary or advisable is in large part dependent on the biological 
status of the species and potential impacts of various activities on 
the species. Green sturgeon have persisted for millions of years 
through cycles of naturally occurring perturbations that have likely 
presented short- and long-term challenges to the species' survival. We 
conclude that the threatened Southern DPS of North American green 
sturgeon is currently at risk of extinction primarily because of human-
induced ``takes'' involving elimination of freshwater spawning habitat, 
degradation of freshwater and estuarine habitat quality, water 
diversions, fishing, and other causes. Therefore, we conclude that 
extending the take prohibitions to the Southern DPS is necessary and 
advisable.
    When the final rule to list the Southern DPS was published on April 
7, 2006, we solicited the public for information that would inform the 
ESA section 4(d) rulemaking. Specifically, we requested information 
regarding: (1) green sturgeon spawning habitat within the range of the 
Southern DPS that was present in the past, but may have been lost over 
time; (2) biological or other relevant data concerning any threats to 
the Southern DPS; (3) current or planned activities within the range of 
the Southern DPS and their possible impact on the Southern DPS; (4) 
efforts being made to protect the Southern DPS; (5) necessary 
prohibitions on take to promote the conservation of the Southern DPS; 
(6) quantitative evaluations describing the quality and extent of 
freshwater and marine habitats (occupied currently or occupied in the 
past, but no longer occupied) for juvenile and adult Southern DPS fish; 
(7) activities that could be affected by an ESA section 4(d) rule; and 
(8) the economic costs and benefits of additional requirements of 
management measures likely to result from protective regulations. No 
substantive additional comments, beyond those that had been received 
during prior solicitations for information, were received.
    Public scoping workshops held on May 31 and June 1, 2006, helped 
advance our understanding of the threats that are likely to result in 
the take of Southern DPS fish. In cases where evidence of direct take 
due to a particular activity was lacking, activities that have caused 
take in species that use similar habitats (i.e., migratory, spawning, 
and rearing), consume similar prey types, have similar morphologies 
and/or physiologies, and/or share other life history requirements 
(e.g., white sturgeon (Acipenser transmontanus) and chinook salmon 
(Oncorhynchus tshawytscha)) were identified and considered for their 
effects on Southern DPS fish. More detailed justification regarding the 
use of take information for surrogate species (i.e. one that shares a 
similar life history or habitat requirement) to infer the take 
potential of an activity on the Southern DPS fish is provided in 
previous Federal Register notices (70 FR 17386, April 6, 2005; 71 FR 
17757, April 7, 2006).
    We conclude that the threatened Southern DPS of North American 
green sturgeon is at risk of extinction primarily because its 
populations have been reduced by human ``take,'' through activities 
that include, but are not limited to: (1) commercial and recreational 
fisheries activities that directly target or incidentally catch 
Southern DPS fish; (2) tribal fisheries activities that directly target 
or incidentally catch Southern DPS fish; (3) poaching; (4) collecting 
or handling Southern DPS fish for activities such as research, 
monitoring, and emergency rescues; (5) habitat-altering activities that 
result in the elimination, obstruction or delay of passage of adult 
Southern DPS fish to and from spawning areas, or otherwise result in 
the inability of adult Southern DPS fish to migrate to and from 
spawning areas; (6) habitat-altering activities that result in the 
destruction, modification or curtailment of spawning or rearing habitat 
for egg, larval or juvenile stages; (7) habitat altering activities 
that result in the elimination, obstruction or delay of downstream 
passage of larval or juvenile stages of Southern DPS fish; (8) 
entrainment and impingement of any life stage of Southern DPS fish 
during the operation of water diversions, dredging or power generating 
projects; (9) application of pesticides adjacent to or within waterways 
that contain any life stage of Southern DPS fish at levels that 
adversely affect the biological requirements of the Southern DPS; (10) 
discharge or dumping of toxic chemicals or other pollutants into waters 
or areas that contain Southern DPS fish; and (11) introducing or 
releasing non-native species likely to alter the Southern DPS'

[[Page 23824]]

habitat or to compete with the Southern DPS for space or food.

Spatial Context for Proposed 4(d) Rule Application

    As described in a Federal Register notice (68 FR 4433) published on 
January 23, 2003, we determined that based on genetic and behavioral 
information, North American green sturgeon is comprised of at least two 
DPSs that qualify as species under the ESA: (1) a northern DPS 
consisting of populations originating from coastal watersheds northward 
of and including the Eel River (``Northern DPS''); and (2) a southern 
DPS consisting of populations originating from coastal watersheds south 
of the Eel River (``Southern DPS'') and the Central Valley of 
California. These geographic boundaries were largely defined by genetic 
evidence indicating that, among samples from rivers where green 
sturgeon are known to spawn (i.e. the Rogue, Klamath, and Sacramento 
rivers), the Rogue and Klamath River fish were more similar to one 
another than to the Sacramento River fish (Israel et al., 2004). 
Although the Southern DPS boundaries are defined by the species' 
genetic structure and its likely strong homing capabilities and 
spawning site fidelity, the spatial extent of the ESA listing and 
proposed take prohibitions for the Southern DPS is not confined to 
areas south of the Eel River. Southern DPS subadults and adults tagged 
in San Pablo Bay, a northern extension of San Francisco Bay, have been 
tracked in estuarine and marine waters far north of the Eel River 
(Lindley et al., 2008), and preliminary genetic mixed stock analyses 
indicate that a proportion of green sturgeon in many estuaries north of 
the Eel River DPS boundary are of Southern DPS origin (J. Israel, UC 
Davis, 2006, unpublished data).
    Tracking data, genetic mixed stock analysis, and direct observation 
indicate that Southern DPS fish occur in freshwater rivers and coastal 
estuaries and bays along the west coast of North America, including, 
but not limited to: San Pablo Bay, CA; Suisun Bay, CA; San Francisco 
Bay, CA (Radtke, 1966; CDFG, 2002; Kelly et al., 2006; J. McLain, 
USFWS, 2006, unpublished data; Department of Water Resources Bay Delta 
and Tributaries data base, 2005, https://bdat.ca.gov/); the 
Sacramento-San Joaquin Delta in the Central Valley California (Radtke, 
1966; CDFG, 2002; Wang, 2006); Sacramento River, CA (USFWS, 1992; Adams 
et al., 2002; Gaines and Martin, 2002; Israel et al., 2004; Heublein et 
al., in press); lower Feather River, CA (Adams et al., 2006; A. 
Seeholtz, CDWR, 2008, unpublished data; FERC, 2008, unpublished data); 
lower Yuba River, CA (Adams et al., 2002; CDFG, 2002; G. Reedy, South 
Yuba River Citizens League, 2006, unpublished data); Humboldt Bay, CA 
(Moyle et al., 1992; B. Pinnix, USFWS, 2008, unpublished data; S. 
Lindley, NMFS, 2008, unpublished data); Coos Bay, OR (Lindley and 
Moser, 2006); Winchester Bay, OR (Lindley and Moser, 2006; J. Israel, 
UC Davis, 2006, unpublished data); Yaquina Bay, OR (Emmett et al., 
1991; ODFW, 2002; D. M. Nelson, 2008, Letter to Steve Stone; J. 
Hightower, USGS, 2006, unpublished data); lower Columbia River and 
estuary, OR and WA (Israel et al., 2004; Lindley and Moser, 2006; WDFW, 
2006, unpublished data; ODFW, 2006, unpublished data); Willapa Bay, WA 
(Lindley and Moser, 2006; J. Israel and B. May, UC Davis, 2006, 
unpublished data; WDFW, unpublished data; ODFW, unpublished data); 
Grays Harbor, WA (Lindley and Moser, 2006; J. Israel and B. May, UC 
Davis, 2006, unpublished data); and Puget Sound, WA (Lindley and Moser, 
2006). Southern DPS fish also occur in coastal waters within 110 meters 
depth from Monterey Bay, CA, to Yakutat Bay, AK (Lindley and Moser, 
2006; Lindley et al., 2008), including the Strait of Juan de Fuca, WA.
    Green sturgeon have also been observed or collected in the 
following coastal rivers, estuaries, and marine waters; however, in 
many of these cases, individuals were not identified to the DPS level: 
Elkhorn Slough, CA (Moyle et al., 1992; Yoklavich et al., 2002; S. 
Lindley, NMFS, 2008, unpublished data; C. Raifsnider and J. Steinbeck, 
Tenera Environmental, 2006, personal communication); Tomales Bay, CA 
(Moyle et al., 1992; J. McLain,USFWS, 2006, unpublished data); Noyo 
Harbor, CA (Moyle et al., 1992; D. Catania, California Academy of 
Sciences, 2006, personal communication); Eel River, CA (Moyle et al., 
1992; Adams et al., 2006); Klamath/Trinity River, CA (Nakamoto et al., 
1995; VanEenenaam et al., 2001; Adams et al., 2002; Adams et al., 2006; 
VanEenenaam et al., 2006; Benson et al., 2007); Rogue River, OR (Rien 
et al.; 2001; Adams et al., 2002; Erickson et al., 2002; Adams et al., 
2006; Erickson and Hightower, 2007; Erickson and Webb, 2007; Webb and 
Erickson, 2007); Siuslaw River, OR (Emmett et al., 1991; S. Lindley and 
M. Moser, NMFS, 2008, unpublished data); Alsea River, OR (Emmett et 
al., 1991; D. M. Nelson, 2008, Letter to Steve Stone); Tillamook Bay, 
OR (Emmett et al., 1991; ODFW, 1997; ODFW, 2002; D. M. Nelson, 2008, 
Letter to Steve Stone); coastal waters within 110 m depth from the 
California/Mexico border to Monterey Bay, CA (Roedel, 1941; Norris, 
1957; R. Rasmussen, NMFS, 2006, unpublished data); and coastal waters 
northwest of Yakutat Bay, AK, including portions of the Gulf of Alaska, 
and the Bering Sea (J. Ferdinand and D. Stevenson, NMFS, 2006, 
unpublished data).

Evaluation of Activities

    While this proposal applies the take prohibitions to any activity 
that takes the Southern DPS, we wanted to determine which activities 
would most likely impede efforts necessary to conserve and recover the 
Southern DPS. To do this, we considered the following questions: (1) 
For which activities do we have evidence of take of Southern DPS fish; 
(2) for those activities where evidence of Southern DPS take does not 
exist, is there evidence of take of surrogate species that share 
similar biological requirements with Southern DPS fish; (3) are 
protective/conservation measures underway to reduce or minimize take 
imposed by some activities; and (4) are there additional protective/
conservation measures that, if taken, would reduce take to low enough 
levels such that particular activities could proceed without 
appreciably reducing the likelihood of survival and recovery of the 
Southern DPS?

Commercial and Recreational Fisheries Activities

    Take of Southern DPS fish occurs during commercial and recreational 
fishing activities throughout the range of North American green 
sturgeon. However, quantifying fishery-related take reliably and 
assessing its effects is challenging because: (1) Northern and Southern 
DPS fish are morphologically indistinguishable from one another and 
when green sturgeon have been taken, they have rarely been identified 
to the DPS level; (2) until recently some fisheries did not report 
green sturgeon take, and (3) in cases where data on take of green 
sturgeon is available, methods for estimating the total annual take by 
a fishery are still being developed. The two DPSs co-inhabit some 
coastal areas and bays in Northern California, Oregon, and Washington, 
and the proportion of Southern DPS fish contributing to overall 
populations in these areas may be high (e.g., 80 percent in the 
Columbia River; J. Israel, UC Davis, 2008, unpublished data). Thus, 
while we know that fisheries-related take is occurring, we are 
uncertain how this take is apportioned between the two DPSs, different 
locales, and different types of fisheries.

[[Page 23825]]

    Green sturgeon are taken as bycatch in white sturgeon fisheries, 
salmon gillnet fisheries, coastal groundfish trawl fisheries, and 
coastal California halibut set net fisheries (Adams et al., 2006; R. 
Rasmussen, NMFS, 2006, unpublished data; J. Ferdinand et al., NMFS, 
2006, unpublished data). These fisheries have taken large numbers of 
green sturgeon historically and have been cited as factors in the 
decline of the species (70 FR 17386, April 6, 2005; 71 FR 17757, April 
7, 2006). For example, from 1985 to 1993, the harvest of green sturgeon 
in commercial fisheries in the Columbia River and in Washington ranged 
from 3,000 to over 7,500 fish per year. Sport fishing harvest during 
the same period ranged from less than 100 to over 500 fish, with the 
majority harvested from the Columbia River. Since 1993, commercial and 
sport harvest of green sturgeon has declined in the Columbia River and 
Washington fisheries to about 150 fish harvested in 2003 (Adams et al. 
2006).
    State recreational and commercial fishing regulations have been 
revised in response to evidence of recent sturgeon declines and to the 
listing of the Southern DPS. In California, the California Fish and 
Game Commission approved revised regulations, effective March 1, 2007, 
to prohibit retention of green sturgeon, alter the slot (size) limit 
(142 cm) and bag limit (one individual daily; 3 individuals annually) 
for white sturgeon, and require implementation of a sturgeon report 
card system. The Washington Fish and Wildlife Commission adopted a 
permanent rule to prohibit retention of green sturgeon in recreational 
fisheries statewide effective May 1, 2007. In addition, the Washington 
Department of Fish and Wildlife and Oregon Department of Fish and 
Wildlife voted to prohibit the retention of green sturgeon in Columbia 
River recreational fisheries from Bonneville Dam to the mouth of the 
river, effective January 1, 2007. For commercial fisheries, the 
retention of green sturgeon has been prohibited in the Columbia River 
by emergency rule since July 2006 and statewide in Washington by 
permanent rule since January 26, 2007. The State of California has 
prohibited commercial fishing for sturgeon since 1917. While these 
emergency and permanent rules offer Southern DPS fish protection, it is 
unclear whether the state closures will remain in effect over the long-
term and ultimately what overall effect the closures will have on the 
Southern DPS.
    Commercial groundfish trawl fisheries occurring in coastal waters 
along the West coast of North America take green sturgeon. Fish are 
primarily caught as bycatch off the coast of California. Over a 6-year 
period, from 2001-2007, 450 green sturgeon were reported as by-catch in 
trawls off the California coast. Almost all green sturgeon caught in 
this fishery are released alive (J. Majewski, NMFS, 2006, unpublished 
data), but the long-term fate of these individuals remains unknown. A 
program for monitoring green sturgeon take was established with the 
NMFS Observer Program in January 2007. Additional measures that may be 
implemented to protect green sturgeon and the Southern DPS include zero 
retention of green sturgeon in all fisheries, minimizing incidental 
catch, monitoring of incidental catch, increased enforcement, fisheries 
closures in areas important to the species, and outreach and education 
on proper catch and release methods and green sturgeon conservation 
issues.

Tribal Fisheries

    Green sturgeon are taken as bycatch in tribal salmon and sturgeon 
fisheries conducted by the Quinault Tribe in coastal Washington waters. 
Tribal harvest of green sturgeon occurs in Grays Harbor and at the 
mouth of tributaries, primarily the Chehalis and Humptulips rivers. The 
number of green sturgeon taken annually from 1985 to 2003 ranged from 
less than 10 to almost 200 fish (Adams et al., 2006). In 2006, the 
Quinault Tribe implemented zero retention of green sturgeon for the 
Grays Harbor fishery (J. Schumacker, Quinault Indian Tribe, 2006, 
personal communication). A large proportion of green sturgeon caught in 
Grays Harbor may be Southern DPS fish, based on hydroacoustic tracking 
information (Lindley and Moser, 2006) and a genetic study indicating 
that approximately 50 percent of green sturgeon sampled in Grays Harbor 
belong to the Southern DPS (J. Israel and B. May, UC Davis, 2006, 
unpublished data).
    Green sturgeon are also taken, though rarely, in tribal commercial 
and subsistence salmon fisheries occurring in freshwater and coastal 
marine waters of Washington, including the Strait of Juan de Fuca, 
Georgia and Rosario straits, and Puget Sound (W. Beattie, NW Indian 
Fisheries Commission, 2008, personal communication). The Yurok and 
Hoopa Tribes harvest green sturgeon in the Klamath River in California, 
but most of the fish are believed to be Northern DPS green sturgeon (J. 
Israel, UC Davis, 2006, unpublished data). Overall, the take of green 
sturgeon in tribal fisheries has been low compared to non-tribal 
fisheries. Measures that may be implemented to conserve the Southern 
DPS include a commitment by the Quinault Tribe, and perhaps other 
Tribes within the occupied range of the Southern DPS, to minimize take 
and monitor incidental catch of green sturgeon over the long-term.

Poaching

    Poaching is a potential threat to the Southern DPS. In recent 
years, several arrests have been made for illegal harvest of white 
sturgeon for their meat and roe from the Sacramento River (CDFG, 2003 
and 2006), the Sacramento-San Joaquin Delta (CDFG, 2004), and the lower 
Columbia River (Cohen, 1997). In the lower Columbia River, an estimated 
2,000 sturgeon were killed over a 5-year period by poachers to produce 
caviar (Cohen, 1997). Poaching may be less significant than incidental 
take associated with white sturgeon sportfishing (Williamson, 2003). 
However, the tendency for green sturgeon to form aggregations for long 
periods of time may make them easy targets for poachers (Erickson et 
al., 2002). Increased public outreach and awareness, increased 
enforcement, and heavier sentences and fines for poachers may help to 
protect green sturgeon from the threats of poaching.

Research, Monitoring and Enforcement Activities

    Scientific research and monitoring of the Southern DPS contributes 
valuable information for the management, conservation, and future 
status reviews of the species. However, collection or handling 
associated with scientific research and monitoring constitutes take and 
may result in stress, injuries, or mortality of Southern DPS fish. In 
recent years, much research and monitoring effort has been placed on: 
(1) tracking the movements and habitat use of Southern DPS fish by 
using a variety of non-lethal tagging techniques; and (2) identifying 
the DPS of origin using non-lethal genetic sampling techniques. These 
two research and monitoring activities provide information crucial to 
the development of an effective recovery strategy for the species. The 
best available information indicates that these procedures, when done 
according to accepted protocols, result in minimal short-term stress to 
the fish and do not result in lethal take. Important scientific 
information (e.g., genetic, pathologic, taxonomic, meristic) is also 
gathered from already dead individuals, thereby providing valuable data 
without putting the species at further risk.
    Enforcement of the ESA and its implementing regulations is an 
essential component of protecting and recovering

[[Page 23826]]

species once they are listed. Enforcement of this proposed regulation 
for the Southern DPS of green sturgeon may involve take. For example, 
when acting in the course of his or her official duties, a NMFS 
enforcement agent investigating an alleged ESA take violation may need 
to collect a Southern DPS fish or samples thereof as evidence of the 
violation.

Emergency Rescue and Salvage Activities

    Emergency fish rescue activities, including aiding sick, injured, 
or stranded fish, disposing of dead fish, or salvaging dead fish for 
use in scientific studies, are forms of take. Rescue activities would 
benefit the Southern DPS in the event of emergency situations that 
result from natural disasters or national defense or security 
emergencies (see 50 CFR 402.05). Activities such as the rescue of fish 
stranded behind a man-made barrier (e.g., weirs, nets, dams) are not 
considered emergency fish rescue activities and should be subject to 
NMFS ESA review.

Habitat-altering Activities

    Dams and water diversion structures have caused the elimination, 
obstruction, or delay of passage for green sturgeon and other sturgeon 
species and may reduce body condition and reproductive success. For 
example, dams and water diversion structures have been observed to 
obstruct or disrupt the upstream spawning migrations of shortnose 
sturgeon in the lower Cape Fear River, NC (Moser and Ross, 1995). White 
sturgeon have also been found stranded behind the Fremont Weir in the 
Yolo Bypass, CA (Harrell and Sommer, 2006). Disruptions in migration 
may cause fish to stop their upstream migration or may delay access to 
spawning habitats (Moser and Ross, 1995). The inability to reach 
spawning habitats may cause fish to spawn in habitats of lower quality, 
resulting in decreased recruitment (Cooke and Leach, 2004). Several 
dams and water diversion structures exist along the spawning migration 
route of the Southern DPS and would be expected to have detrimental 
effects similar to those observed in surrogate species. Fish passage 
studies at the Red Bluff Diversion Dam (RBDD) in the Sacramento River 
show that the RBDD blocks the upstream migration of the Southern DPS 
when the gates are lowered between May 15 and September 15 (Heublein et 
al., 2006; Brown, 2007). Mitigation measures have been implemented, 
including the raising of RBDD gates from September 15 to May 15 each 
year to allow fish passage and the protection and restoration of 
spawning and rearing habitat along the Sacramento River, bays, and the 
Sacramento-San Joaquin Delta. However, when the gates are raised, green 
sturgeon may become disoriented or suffer injuries due to the high 
velocity of water passing under the gates (M. Tucker, NMFS, 2007, 
personal communication). Between May 18 and June 10, 2007, carcasses of 
10 adult Southern DPS fish (168-226 cm total length) were found at 
(n=2) or downstream (n=8) of RBDD (E. Campbell, USFWS, 2007, 
unpublished data). Locations of the retrieved carcasses and necropsy 
results suggest that the fish suffered mortality due to injuries 
inflicted by the gates at RBDD. Installation of adequate fish passage 
facilities, modification of existing passage facilities, or other 
provisions to specifically aid sturgeon passage at dams and diversions, 
and application of other mitigation measures, such as salvage 
operations, would contribute to the protection of the Southern DPS.
    The elimination, obstruction, or delay of downstream passage is a 
concern for larval and juvenile stages of the Southern DPS, as are 
habitat-altering activities that destroy, modify, or curtail spawning 
or rearing habitats for egg, larval, or juvenile stages. Specific 
concerns include, but are not limited to: increased sediment input or 
runoff into streams; filling in or isolation of stream channels, side 
channels, and intermittent waters; direct removal or alteration of 
physical structures; and obstruction of downstream migration.
    Increased input or runoff of fine sediments into streams may result 
from a number of activities including, but not limited to, mining, 
logging, farming, grazing, and bridge and road construction. Increased 
erosion and sediment input or runoff into streams caused by land use 
and other human activities have been found to reduce the survival and 
successful development of eggs and embryos of salmon and other fish 
species (Scrivener and Brownlee, 1989; Owen et al., 2005). The effects 
on green sturgeon eggs and embryos are likely to be similar. Green 
sturgeon eggs are large and dense and likely sink into rock crevices or 
attach to hard surfaces (Deng et al., 2002; Kynard et al., 2005). Once 
hatched, green sturgeon embryos remain near the bottom and use rocks as 
cover (Kynard et al., 2005). Excess fine sediments can compromise 
successful development by burying already-deposited eggs , reducing 
interstitial dissolved oxygen available for eggs (Scrivener and 
Brownlee, 1989), or filling areas used by embryos for cover. Thus, 
Southern DPS eggs or embryos may be taken due to habitat-altering 
activities that increase input of fine sediments or runoff into 
spawning or rearing habitat. The effect that increased input of fine 
sediments or runoff has at the individual, population and species 
levels will depend on the temporal and spatial extent of habitat 
change. The only way to determine this is to analyze particular 
activities on a case-by-case basis.
    The filling in or isolation of stream channels, side channels, and 
intermittent waters may destroy or block access to rearing habitats, or 
impede or delay downstream migration by trapping larvae and juveniles 
that have entered these areas. Activities that fill in or isolate 
waters include, but are not limited to, the installation of tide gates, 
culverts, and debris- or sediment-trapping road crossing structures. 
These activities and their effects are a concern for listed salmon and 
steelhead and may also affect larval and juvenile Southern DPS fish. 
However, we currently lack the information needed to quantitatively 
assess these effects. Although relatively large numbers of juveniles 
have been collected in shallow areas of the Santa Clara shoal in the 
Sacramento-San Joaquin Delta (Radtke, 1966), the use of stream 
channels, side channels, and intermittent waters as rearing habitat by 
green sturgeon larvae and juveniles has not been documented. 
Information regarding the use of these habitats by early life stages of 
green sturgeon is needed.
    Direct removal or alteration of physical structures essential to 
the integrity and function of the Southern DPS's spawning or rearing 
habitat, including rocks, soil, gravel, and vegetation, may adversely 
affect the growth and survival of larvae and juveniles. Green sturgeon 
likely use specific substrate types at different life stages, but 
observations of early life stages of green sturgeon in the field are 
lacking. Studies suggest that spawning most likely occurs over cobble 
substrates that provide crevices and cover for eggs (Kynard et al., 
2005; Nguyen and Crocker, 2006). However, in a laboratory study of 
substrate use by post-hatch larval green sturgeon, growth and survival 
was greatest in flat slate-rock substrates that provided cover and 
sufficient foraging opportunities (Nguyen and Crocker, 2006). Survival 
was low in cobble substrates, because larvae became trapped in crevices 
and died; whereas in sand substrates, the cause of lower survival and 
growth was attributed to the ingestion of sand particles similar in 
size to food particles (Nguyen and Crocker, 2006). Juveniles

[[Page 23827]]

likely use deep pool habitats with rock structure during the winter 
(Kynard et al., 2005). Removal or alteration of these physical 
structures (i.e. cobble for spawning and egg development; flat rock for 
larval rearing; deep pool habitats with rock structure for juvenile 
rearing) may reduce spawning or rearing success rates. Information 
regarding the use of spawning habitats by Southern DPS early life 
stages and the effects of removing or altering physical components of 
Southern DPS spawning habitat on recruitment success is needed.
    The construction and maintenance of dams and water diversion 
structures may impede or delay downstream migration and alter habitats 
important to larval and juvenile stages of the Southern DPS. Dams and 
water diversions may block downstream migration of larvae and 
juveniles, unless fish transport or bypass facilities exist. Passage 
across dams and water diversion structures may also disorient or injure 
larvae and juveniles and make them more vulnerable to predation, as has 
been observed for juvenile salmonids at RBDD (Bigelow and Johnson, 
1996; Gaines and Martin, 2002). The actual construction of dams and 
water diversion structures may cause increased erosion and 
sedimentation and disrupt or alter physical structures in spawning or 
rearing habitats, with effects as described in the previous paragraphs.
    While existing laws require mining, timber harvest, and other 
resource use plans to address erosion and other adverse impacts on 
stream habitats, these laws may not be adequate to protect the Southern 
DPS. Additional measures that would help reduce potential adverse 
impacts on Southern DPS fish are: (1) protection of riparian habitat by 
limiting activities that cause erosion, sediment input or runoff into 
streams, or roadway and other linear development near or across 
streams; (2) construction of fish protection and passage facilities; 
and (3) limiting the temporal and/or spatial scopes of habitat 
alteration activities that occur in and near spawning and rearing 
locations.

Habitat Restoration

    The primary purpose of habitat restoration is to restore natural 
aquatic or riparian habitat conditions or processes over the long-term. 
Specifically, we define habitat restoration as the process of 
reestablishing a self-sustaining habitat that closely resembles natural 
conditions in terms of structure and function for the Southern DPS. A 
variety of habitat-altering activities such as barrier removal or 
modification to restore natural water flows, river and estuarine bed 
restoration, natural bank protection, restoration of native vegetation, 
removal of non-native species, and removal of contaminated sediments 
have been used to reestablish natural river and estuarine functions 
over the long-term. Although take of green sturgeon could potentially 
occur during the course of completing restoration activities, we do not 
have evidence that these types of activities have taken the Southern 
DPS or a surrogate species. It is likely that these activities are 
important to the conservation and recovery of the Southern DPS.

Entrainment and Impingement Risks

    The operation of water diversions, power generating projects, and 
dredging activities pose entrainment and impingement threats to all 
life stages of the Southern DPS. We define entrainment to mean the 
incidental trapping of any life stage of fish within waterways or 
structures that carry water being diverted for anthropogenic use. We 
define impingement to mean the entrapment of any life stage of fish on 
the outer part of any structure (e.g., intake structures, screening 
devices) that separates water traveling a natural course of passage 
from water that is being diverted for anthropogenic use. Unscreened 
water diversions number in the hundreds to thousands in the Sacramento 
River and the Sacramento-San Joaquin Delta (Herren and Kawasaki, 2001). 
Factors that determine the entrainment risk of fish at diversions 
include the location and size of fish. A study of fish entrainment at 
an unscreened diversion in the Sacramento River documented entrainment 
of fish ranging in size from 9 to 59 mm fork length (FL) in July 2000 
and 2001 (Nobriga et al., 2004). Green sturgeon were not among the 
species documented in the study, but Southern DPS larvae and small 
juveniles within the size range of 9-59 mm FL occur in the Sacramento 
River at that time of year and are believed to also be at risk of 
entrainment at unscreened diversions. Entrainment of juvenile green 
sturgeon has been documented at the state and Federal fish facilities 
in the south Sacramento-San Joaquin Delta, where fish are salvaged 
before they enter the pumps (Adams et al., 2006). Programs to install 
fish screens at water diversions are being implemented and many major 
diversions have already been screened. Installation of fish screens, 
construction of bypass and other fish protection facilities (Bigelow 
and Johnson, 1996; Gaines and Martin, 2002), adjustments in the timing 
of operations, and continuation of fish salvage operations, where 
applicable, would help minimize and mitigate entrainment of Southern 
DPS fish at water diversions.
    Evidence exists for the impingement of green sturgeon in the 
operation of coastal power plants using cooling water intake systems. 
Two juvenile green sturgeon were impinged and died on cooling water 
intake screens at the now retired Contra Costa Plant Units 1-5 in 1978-
1979 and at the Moss Landing Power Plant in 2006 (C. Raifsnider and J. 
Steinbeck, Tenera Environmental, 2006, personal communication). Current 
conservation efforts include the installation of screens to reduce 
entrainment, studies of fish impingement and entrainment at power 
plants, and laws that require the minimization of fish impingement and 
entrainment. Other actions that can be taken to reduce impingement and 
entrainment include altering the time of day when water intake pumps 
are operated, altering the velocity of water intake, and the use of 
alternative cooling systems that do not require water intake.
    Dredging operations in freshwater rivers, bays, and estuaries where 
Southern DPS fish occur may pose entrainment risk. Although entrainment 
of green sturgeon in dredging operations has not been documented, the 
effects could be significant. Approximately two thousand juvenile white 
sturgeon were entrained during operation of a large suction dredge in 
the lower Columbia River (Buell, 1992). Juvenile green sturgeon would 
be expected to face similar entrainment risks from dredging operations 
because they are also bottom-oriented and occur in habitats similar to 
white sturgeon. Long-term management strategies for San Francisco Bay 
dredging operations have established regional environmental work 
windows, or periods of time when certain fish species are not likely to 
be present in a location. Currently, it is believed that Southern DPS 
juveniles reside in San Francisco, Suisun, and San Pablo bays year-
round so environmental work windows will likely not be effective in 
reducing the risks of dredging operations to the Southern DPS in these 
locations. However, the use of specific types of dredging equipment 
with modified designs would reduce the entrainment risk to Southern DPS 
fish from dredging operations.

Pesticides and Discharge of Pollutants

    The application of pesticides adjacent to or within waterways that 
contain any life stage of the Southern DPS may adversely affect their 
growth and

[[Page 23828]]

reproductive success. Several pesticides have been detected in the 
Sacramento River Basin at levels that are likely to be harmful to 
aquatic life (Domagalski et al., 2000). The accumulation of industrial 
chemicals and pesticides such as polychlorinated biphenyls (PCBs), 
dichloro-diphenyl-trichloroethanes (DDTs), and chlordanes in white 
sturgeon gonad, liver, and muscle tissues affects growth and 
reproductive development and results in lower reproductive success 
(Fairey et al., 1997; Foster et al., 2001a; Foster et al., 2001b; Kruse 
and Scarnecchia, 2002; Feist et al., 2005; Greenfield et al., 2005). 
Green sturgeon are believed to experience similar risks from 
contaminants, although their exposure may be reduced because a greater 
proportion of their subadult and adult lives are spent in marine waters 
(70 FR 17386, April 6, 2005). Pesticides may also indirectly affect 
green sturgeon through effects on their prey species. For example, 
green sturgeon are believed to enter Willapa Bay to feed on burrowing 
ghost shrimp (Neotrypaea californiensis), which have declined in 
abundance due to the deliberate application of carbaryl (Moser and 
Lindley, 2006).
    The discharge or dumping of toxic chemicals or other pollutants 
into waters and areas where Southern DPS fish occur would be expected 
to reduce their growth and reproductive success. Pollutants including 
mercury, selenium, and arsenic have been detected in white sturgeon 
gonad, liver, and muscle tissues and are believed to affect growth, 
reproductive development, and reproductive success (Fairey et al., 
1997; Davis et al., 2002; Kruse and Scarnecchia, 2002; Greenfield et 
al., 2005; Webb et al., 2006). Again, the effects on green sturgeon are 
likely to be similar.
    Under the Federal Clean Water Act, acceptable levels for 
contaminants in waterways have been established by the States and the 
U.S. Environmental Protection Agency (EPA). Entities must also obtain 
National Pollutant Discharge Elimination System (NPDES) permits to 
discharge contaminants. However, NPDES permits are not required for 
irrigated agriculture and agricultural stormwater runoff. Furthermore, 
the national standards for use of pesticides and toxic substances may 
not be conservative enough to adequately protect the Southern DPS as 
was found for listed salmonids in recent draft and final jeopardy 
biological opinions issued by NMFS to the EPA (NMFS 1998, NMFS 2000, 
NMFS 2008). Thus, programs to aid agricultural producers in meeting 
NMFS-imposed water quality standards may be required to minimize 
adverse impacts on the Southern DPS.

Non-native Species Introductions

    Non-native species are a continuing problem in freshwater rivers 
and coastal bays and estuaries and may affect the Southern DPS through 
trophic interactions. Introduced species, such as striped bass in the 
Sacramento River and the Sacramento-San Joaquin Delta, may prey on 
green sturgeon. Non-native species may also replace prey species of 
green sturgeon and result in greater bioaccumulation of contaminants. 
For example, Potamocorbula amurensis, a non-native bivalve, has become 
widespread in the San Francisco Bay and the Sacramento-San Joaquin 
Delta and has replaced other common prey items for white sturgeon. P. 
amurensis is an efficient bioaccumulator of selenium, a reproductive 
toxin that causes deformities in embryos and reduced hatchability of 
eggs, and has been linked with increased selenium levels in white 
sturgeon (Linville et al., 2002). P. amurensis has also been identified 
in the gut contents of at least one green sturgeon (CDFG, 2002). Non-
native species may also alter the Southern DPS' habitat or compete with 
the Southern DPS for space or food. Although existing laws prohibit the 
release of non-native species into the environment, accidental and 
intentional introduction of non-native species remains a problem. 
Eradication programs for non-native species, increased public education 
and outreach, and increased fines or penalties for the release of non-
native species would help to alleviate this problem.

Proposed 4(d) Protective Regulations for the Southern DPS

    We propose to apply the prohibitions listed under ESA sections 
9(a)(1)(A) through 9(a)(1)(G) for the Southern DPS, including all the 
ESA section 9(a)(1)(B) and 9(a)(1)(C) prohibitions (the ``take 
prohibitions'') except for specific activities described below (see 
Exceptions, Criteria for Exceptions, and Reporting Requirements). ESA 
section 9(a)(1)(A) states that it is unlawful to import or export 
endangered species into or from the United States; ESA section 
9(a)(1)(B) states that it is illegal to take endangered species within 
the United States or the territorial sea of the United States; ESA 
section 9(a)(1)(C) states that it is illegal to take endangered species 
upon the high seas; ESA section 9(a)(1)(D) states that it is illegal to 
possess, sell, deliver, carry, transport, or ship, by any means 
whatsoever, endangered species taken in violation of 9(a)(1)(A) and 
9(a)(1)(C); ESA section 9(a)(1)(E) states that it is illegal to 
deliver, receive, carry, transport, or ship in interstate or foreign 
commerce by any means whatsoever and in the course of a commercial 
activity, endangered species; ESA section 9(a)(1)(F) states that it is 
illegal to sell or offer for sale in interstate or foreign commerce, 
endangered species; and ESA section 9(a)(1)(G) states that it is 
illegal to violate any regulation pertaining to endangered species or 
to any threatened species of fish or wildlife listed pursuant to 
section 4 of the ESA and promulgated by the Secretary pursuant to 
authority provided by the ESA.
    These prohibitions are necessary and advisable for the conservation 
of the Southern DPS because human ``take'' via activities including, 
but not limited to, detrimental habitat alteration, modification, and 
curtailment; fisheries catch and bycatch; application of pesticides, 
toxic chemicals, or other pollutants adjacent to or within waterways; 
entrainment or impingement of eggs or fish during water diversion 
operations, dredging, or power generation; unnecessary collection or 
handling; and introduction of non-native species that disrupt trophic 
pathways, has contributed to the decline of the Southern DPS and is 
likely to impede its conservation and recovery.

Exceptions, Criteria for Exceptions, and Reporting Requirements

    We propose exceptions to the ESA section 9(a)(1)(B) and 9(a)(1)(C) 
prohibitions (the ``take prohibitions'') for specific activities. These 
proposed exceptions encompass specific activities that may be excluded 
from the take prohibitions for the Southern DPS through the relatively 
informal coordination process described below. In determining that it 
is necessary and advisable to not impose take prohibitions on certain 
activities, we are mindful that new information may require a 
reevaluation of that conclusion at any time. For any of the exceptions 
to the take prohibitions described below, we would evaluate on a 
regular basis the effectiveness of the activities in conserving and 
protecting the Southern DPS. If the activities are not effective in 
conserving and protecting the Southern DPS, we would identify ways in 
which the activities need to be altered or strengthened. For habitat-
related exceptions to the take prohibitions, changes may be required if 
the activities are not achieving desired habitat functionality or the 
habitat is not supporting population productivity levels needed to 
conserve the Southern

[[Page 23829]]

DPS. If the responsible agency does not make changes to respond 
adequately to the new information, we would publish notification in the 
Federal Register announcing the intention to impose take prohibitions 
on those activities. Such an announcement would provide for a comment 
period of not less than 30 days, after which we would make a final 
determination whether to extend the ESA section 9(a)(1)(B) and (C) take 
prohibitions to the activities. We propose that take of the Southern 
DPS not be prohibited during the course of the following activities:
    (1) Federal, state or private-sponsored research or monitoring 
activities if they adhere to all of the following: (a) the activity 
must comply with required state reviews or permits; (b) the research or 
monitoring activity must be directed at the Southern DPS and not be 
incidental to research or monitoring of another species; (c) take of 
live mature adults in the lower Feather River from the confluence with 
the Sacramento River to the Oroville Dam (rkm 116), the lower Yuba 
River from the confluence with the Feather River to the Daguerre Dam 
(rkm 19), or Suisun, San Pablo, and San Francisco Bays or the 
Sacramento-San Joaquin Delta from the Golden Gate Bridge up into the 
Sacramento River to Keswick Dam (rkm 483) may only occur from July 1 
through March 1 so as to substantially increase the likelihood that 
uninterrupted upstream spawning migrations of adults will occur; (d) 
take must be non-lethal; (e) take involving the removal of any life 
stage of the Southern DPS from the wild must not exceed 60 minutes; (f) 
take must not involve artificial spawning or enhancement activities; 
(g) a description of the study objectives and justification, a summary 
of the study design and methodology, estimates of the total non-lethal 
take of Southern DPS fish anticipated, estimates of incidental take of 
other ESA listed species anticipated and proof that those takes have 
been authorized by NMFS or the USFWS, identification of funding 
sources, and a point of contact must be reported to NMFS at least 60 
days prior to the start of the study, or for ongoing studies within 60 
days after publication of the final rule; (h) reports that include the 
total number of Southern DPS and any other ESA listed species taken, 
information that supports that take was non-lethal, and a summary of 
the project results must be submitted to NMFS on a schedule to be 
determined by NMFS staff; (i) research or monitoring that involves 
action, permitting or funding by a federal agency must still comply 
with the requirements of ESA section 7(a)(2) in order to ensure that 
the action will not jeopardize the continued existence of the 
threatened Southern DPS.
    (2) Enforcement activities when an employee of NMFS, acting in the 
course of his or her official duties, takes the Southern DPS without a 
permit, if such action is necessary for purposes of enforcing the ESA 
or its implementing regulations.
    (3) Emergency fish rescue and salvage activities that include 
aiding sick, injured, or stranded fish, disposing of dead fish, or 
salvaging dead fish for use in scientific studies, if they adhere to 
all of the following: (a) the activity must comply with required state 
or other Federal reviews or permits; (b) activities may only be 
conducted by an employee or designee of NMFS or the U.S. Fish and 
Wildlife Service (USFWS), any Federal land management agency, or 
California Department of Fish and Game (CDFG), Oregon Department of 
Fish and Wildlife (ODFW), Washington Department of Fish and Wildlife 
(WDFW), or Alaska Department of Fish and Game (ADFG); (c) the emergency 
rescue may only occur because of situations that result from natural 
disasters, national defense, or security emergencies (see 50 CFR 
402.05); (d) the emergency rescue must benefit the Southern DPS; (e) a 
report must be submitted to NMFS that includes, at a minimum, the 
number and status of fish handled and the location of rescue and/or 
salvage operations within 30 days after conducting the emergency 
rescue.
    (4) Habitat restoration activities, including barrier removal or 
modification to restore water flows, riverine or estuarine bed 
restoration, natural bank stabilization, restoration of native 
vegetation, removal of non-native species, or removal of contaminated 
sediments, that reestablish self-sustaining habitats for the Southern 
DPS, if they adhere to all of the following: (a) compliance with 
required state and Federal reviews and permits; (b) a detailed 
description of the restoration activity sent to NMFS at least 60 days 
prior to the start of the restoration project which includes: the 
geographic area affected; when activities will occur; how they will be 
conducted; and the severity of direct; indirect, and cumulative impacts 
of activities on the Southern DPS; identification of funding sources; 
demonstration that all state and federal regulatory requirements have 
been met; a description of methods used to ensure that the likelihood 
of survival or recovery of the listed species is not reduced; a plan 
for minimizing and mitigating any adverse impacts to Southern DPS 
spawning or rearing habitat; an estimate of the amount of incidental 
take of the listed species that may occur and a description of how that 
estimate was made; a plan for effective monitoring and adaptive 
management; a pledge to use best available science and technology when 
conducting restoration activities; and a point of contact; (c) progress 
reports that include the total number of Southern DPS taken, 
information regarding whether the take was lethal or non-lethal, a 
summary of the status of the project, and any changes in the methods 
being employed, must be submitted to NMFS on a schedule to be 
determined by NMFS staff; (d) activities that involve action, 
permitting or funding by a federal agency must still comply with the 
requirements of ESA section 7(a)(2) in order to ensure that the action 
will not jeopardize the continued existence of the threatened Southern 
DPS.

Exemptions Provided by NMFS-approved ESA 4(d) Programs

    We propose exemptions from the take prohibitions for certain 
activities included within a NMFS-approved 4(d) program. Activities 
included in a 4(d) program would be excused from the take prohibitions 
for the Southern DPS through a formal NMFS 4(d) program approval 
process described below.

ESA 4(d) Program for Commercial and Recreational Fishery Management

    Take of green sturgeon in commercial and recreational fisheries 
activities would be allowed if fisheries activities were conducted 
under approved Fisheries Management and Evaluation Plans (FMEPs). We 
expect that, in many cases, fisheries will have acceptably small 
impacts on the threatened Southern DPS as long as state fishery 
management programs are specifically tailored to meet certain criteria. 
NMFS-approved FMEPs must address limiting take of green sturgeon in 
order to protect the listed entity, the Southern DPS. We consider this 
necessary because discrimination between the non-listed Northern DPS 
and listed Southern DPS, via gear specificity, visual indicators, 
spatial distribution, etc., is not currently possible. In order for 
NMFS to exempt commercial or recreational fishing activities from the 
take prohibitions, an FMEP must: (1) prohibit retention of green 
sturgeon (i.e. zero bag limit); (2) set maximum incidental take levels; 
(3) include measures to minimize incidental take of green sturgeon 
(e.g., temporal/spatial restrictions, size, gear); (4) provide a 
biologically based rationale demonstrating that the incidental take 
management strategy will not significantly reduce the

[[Page 23830]]

likelihood of survival or recovery of the Southern DPS; (5) include 
effective monitoring and evaluation plans; (6) provide for evaluating 
monitoring data and making revisions to the FMEP; (7) provide for 
effective enforcement and education; and (8) report the amount of 
incidental take and summarize the effectiveness of the FMEP to NMFS on 
a biannual basis. If we find that an FMEP meets these criteria, we 
would issue a letter of concurrence to the State that sets forth the 
terms of the FMEP's implementation and the duties of the parties 
pursuant to the FMEP.
    Section 9(a)(1)(B) and (a)(1)(C) take prohibitions would not apply 
to ongoing commercial and recreational fisheries activities after 
publication of the final rule, for up to 120 days, if a letter of 
intent to develop an FMEP addressing green sturgeon has been received 
by NMFS within 30 days after the final rule is published in the Federal 
Register. The exemption will be suspended if the letter of intent is 
rejected without further review of an FMEP. If the letter of intent is 
received within 30 days of publication of the final 4(d) rule in the 
Federal Register, a final FMEP must be received by NMFS within 120 days 
from the date of receipt of the letter of intent. Ongoing commercial 
and recreational fisheries activities may continue until NMFS issues a 
letter of concurrence (or denial) for final FMEPs.
    Once an FMEP has been submitted to NMFS for review, NMFS will: (1) 
provide a public comment period ([gteqt] 30 days) before approval of 
new or amended FMEPs; (2) provide a letter of concurrence for approved 
FMEPs that specifies the implementation and reporting requirements; (3) 
evaluate FMEPs on a regular basis and identify changes that would 
improve their effectiveness; and (4) provide a public comment period 
([gteqt] 30 days) before withdrawing approval of an FMEP.

ESA 4(d) Program for Tribal Fishery Management

    Fishery harvest or other activities conducted by a tribe, tribal 
member, tribal permittee, tribal employee, or tribal agent in Willapa 
Bay, WA, Grays Harbor, WA, Coos Bay, OR, Winchester Bay, OR, Humboldt 
Bay, CA, and any other area where tribal treaty fishing occurs are 
eligible to obtain take authorization via the same method outlined in 
the NMFS final rule for authorizing take of threatened salmon and 
steelhead for actions under tribal resource management plans (July 10, 
2000; 65 FR 42481). This method has been modified below for the 
Southern DPS. We consider current tribal fishing activities to have 
acceptably small impacts on the threatened Southern DPS and propose 
that if the tribes, either singly or jointly, develop tribal resource 
management plans for the Southern DPS, or incorporate the Southern DPS 
into existing tribal resource management plans, that current and future 
tribal activities are not likely to appreciably reduce the likelihood 
of survival and recovery of the species.
    A tribe intending to exercise a tribal right to fish or undertake 
other resource management actions that may impact the threatened 
Southern DPS could create a tribal resource management plan (Tribal 
Plan) that would assure that those actions would not appreciably reduce 
the likelihood of survival and recovery of the species. The Secretary 
would stand ready to the maximum extent practicable to provide 
technical assistance to any tribe that so requests in examining impacts 
on the listed Southern DPS and in the development of Tribal Plans that 
meet tribal management responsibilities and needs. In making a 
determination whether a Tribal Plan will appreciably reduce the 
likelihood of survival and recovery of the threatened Southern DPS, the 
Secretary, in consultation with the tribe, would use the best available 
scientific and commercial data (including careful consideration of any 
tribal data and analysis) to determine the Tribal Plan's impact on the 
biological requirements of the species. The Secretary would also assess 
the effect of the Tribal Plan on survival and recovery in a manner 
consistent with tribal rights and trust responsibilities. Before making 
a final determination, the Secretary would seek comment from the public 
on his pending determination whether or not implementation of a Tribal 
Plan will appreciably reduce the likelihood of survival and recovery of 
the listed Southern DPS. The Secretary would publish notification in 
the Federal Register of any determination regarding a Tribal Plan and 
the basis for that determination.

ESA 4(d) Program for Scientific Research and Monitoring Activities

    State-coordinated research activities for scientific research or 
enhancement purposes that do not fall into the exception category 
described above (see Exceptions, Criteria for Exceptions, and Reporting 
Requirements) may receive an exemption from the take prohibitions for 
the Southern DPS for activities included in a state-sponsored, ESA-
compliant, scientific research program between state fishery agencies 
(i.e., CDFG, ODFW, WDFW, or ADFG) and NMFS, hereafter referred to as a 
state 4(d) research program. Activities conducted as part of a state 
4(d) research program must meet existing state and federal laws and 
regulations and would include research and monitoring projects 
conducted by state employees or by recipients of state fishery agency-
issued permits (including Federal and non-Federal entities), that 
directly or incidentally take Southern DPS green sturgeon. We find that 
in carrying out their responsibilities to manage state fisheries, state 
agencies are conducting or sponsoring research vital for improving our 
understanding of the status and risks facing the Southern DPS and other 
listed species that occur in overlapping habitat, and provide critical 
information for assessing the effectiveness of current and future 
management practices.
    State 4(d) research programs have been developed and implemented in 
California, Oregon, and Washington for listed West coast salmon and 
steelhead and are consistent with ESA requirements for research-related 
take of these listed species. The Southern DPS would most likely be 
incorporated into the existing state 4(d) research programs established 
for listed salmon and steelhead. Otherwise, the state would be required 
to prepare a program and submit it to NMFS for approval. NMFS may 
approve the program or return the program to the state agency for 
revision.
    In general, we conclude that as long as state biologists and 
cooperating agencies carefully consider the benefits and risks of 
activities included in a state 4(d) research program, such programs 
would help streamline the take authorization process for researchers, 
state agencies, and NMFS by allowing state fishery agencies to maintain 
primary responsibility for coordination and oversight of research 
activities. Each year, researchers would be required to submit research 
applications to the state fishery agency preferably through the NMFS 
online application website Authorizations and Permits for Protected 
Species (APPS) at https://apps.nmfs.noaa.gov. Research applications 
must include, at a minimum, the following information: (1) an estimate 
of the total direct or incidental take of Southern DPS fish that is 
anticipated; (2) a description of the study design and methodology; (3) 
a justification for take of Southern DPS fish and the techniques to be 
employed; and (4) a point of contact. The state agency would have 
access, via NMFS, to the submitted applications, evaluate and determine 
which projects are eligible for inclusion under the program, and 
approve or deny individual project applications. Once the state agency

[[Page 23831]]

review is complete, the state agency would be required to provide for 
NMFS' review and approval a list of project applications approved for 
possible inclusion in a 4(d) research program for the coming year. 
After our review of the applications and follow-ups with the 
researchers to address concerns if necessary, we would analyze effects 
of the activities on the Southern DPS. Finally, we would complete the 
ESA section 7 consultation and NEPA documentation and issue an approval 
letter to the state fishery agency confirming that the research 
activities covered within the 4(d) research program are exempt from the 
ESA take prohibitions. A section 10 permit is not issued. Researchers 
have to comply with the conditions of the 4(d) research program and 
must submit an annual report, preferably through the NMFS online 
application website Authorizations and Permits for Protected Species 
(APPS) at https://apps.nmfs.noaa.gov. The annual report must include, 
for e