Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Alabama Stur geon (Scaphirhynchus suttkusi), 26488-26510 [E9-12517]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 104 (Tuesday, June 2, 2009)]
[Rules and Regulations]
[Pages 26488-26510]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-12517]



[[Page 26487]]

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Part II





Department of the Interior





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Fish and Wildlife Service



50 CFR Part 17



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Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi); Final Rule

Federal Register / Vol. 74, No. 104 / Tuesday, June 2, 2009 / Rules 
and Regulations

[[Page 26488]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R4-ES-2008-0058; 92210-1117-0000-FY08-B4]
RIN 1018-AV51


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Alabama Sturgeon (Scaphirhynchus suttkusi)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Alabama sturgeon (Scaphirhynchus suttkusi) 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 524 kilometers (326 miles) of river fall within the 
boundaries of the critical habitat designation. The critical habitat 
includes portions of the Alabama and Cahaba Rivers in Autauga, Baldwin, 
Bibb, Clarke, Dallas, Lowndes, Monroe, Perry, and Wilcox Counties, in 
Alabama.

DATES: This rule becomes effective on July 2, 2009.

ADDRESSES: This final rule and the associated final economic analysis 
are available on the Internet at https://www.regulations.gov. Supporting 
documentation we used in preparing this final rule is available for 
public inspection, by appointment, during normal business hours, at the 
U.S. Fish and Wildlife Service, Alabama Ecological Services Field 
Office, 1208-B Main Street, Daphne, AL 36526; telephone 251/441-5858; 
facsimile 251/441-6222.

FOR FURTHER INFORMATION CONTACT: Jeff Powell, Aquatic Species 
Biologist, U.S. Fish and Wildlife Service, Alabama Ecological Services 
Field Office, 1208-B Main Street, Daphne, AL 36526; telephone 251/441-
5858; facsimile 251/441-6222. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800/877-8339.

SUPPLEMENTARY INFORMATION:

Background

    In this final rule, we intend to discuss only those topics directly 
relevant to the distribution of the Alabama sturgeon and the 
designation of its critical habitat. For more information on the 
species, refer to the final and proposed listing rules published in the 
Federal Register on May 5, 2000 (65 FR 26438), and on March 26, 1999 
(64 FR 14676), respectively.
    Sturgeon is the common name used for large, bony-plated, primitive 
fishes in the family Acipenseridae which typically grow slowly and 
mature late in life. The Alabama sturgeon (Scaphirhynchus suttkusi) is 
the smallest of all the North American sturgeons, typically weighing 
only 1 to 2 kilograms (2 to 4 pounds) at maturity. The head is broad 
and flattened shovel-like at the snout, with a tubular and protrusive 
mouth. As with all sturgeon species, there are four barbels (whisker-
like appendages) located on the bottom of the snout in front of the 
mouth that are used to locate prey. Bony plates called scutes line the 
body in five rows, one on the back and two each on the middle and lower 
sides. Bony plates separated by sutures also cover the head. The body 
narrows abruptly to the rear-forming a narrow stalk between the body 
and tail. The upper lobe of the tail fin is elongated and ends in a 
long filament. Coloration of the upper body is light tan to golden 
yellow, with a creamy white belly. Sturgeon are long-lived fishes. 
Although the life span of the Alabama sturgeon in the wild is unknown, 
Burke and Ramsey (1985) provided estimates on three individuals that 
ranged from 2 to 10 years of age.
    The Alabama sturgeon is endemic to rivers of the Mobile River Basin 
below the Fall Line (inland boundary of the Coastal Plain) (Mettee et 
al. 1996, p. 83; Boschung and Mayden 2004, p. 109). Its current range 
includes the Alabama River from R.F. Henry Lock and Dam downstream to 
the confluence of the Tombigbee River. The species is also known to 
survive in the Cahaba River. For information on range of the species, 
see the Criteria Used To Identify Critical Habitat section of this 
rule.
    Despite extensive and intensive efforts in the decade prior to its 
listing, only eight Alabama sturgeon were captured, or reported 
captured and released. These fish were collected from several locations 
in the Alabama River between Millers Ferry Lock and Dam and its 
confluence with the Tombigbee River (Rider and Hartfield 2007, p. 490). 
Since the 2000 publication of the final rule listing the species under 
the Act, two Alabama sturgeon have been captured or reported captured. 
One of these was captured, videotaped, and released by a fisherman in 
the lower Cahaba River in July 2000 shortly after publication of the 
final rule. The most recent capture was an individual collected from 
the Alabama River below Claiborne Lock and Dam on April 3, 2007, by the 
Alabama Department of Conservation and Natural Resources (ADCNR). This 
fish was implanted with a sonic tag and released on April 17, 2007, at 
the location where it was captured.
    Flows in the Alabama River are heavily influenced by upstream 
releases from Alabama Power Company and U.S. Army Corps of Engineers 
(USACE) hydropower projects, and riverine habitats are fragmented by 
Claiborne and Millers Ferry Locks and Dams. This 386-kilometer (240-
mile) stretch of the Alabama River, along with the lower Cahaba River, 
represents the last remaining viable habitat for the sturgeon.

Previous Federal Actions

    On May 5, 2000, we listed the Alabama sturgeon as endangered under 
the Act (65 FR 26438). In that final listing rule, we determined that 
designation of critical habitat was prudent but that critical habitat 
was not determinable, due to the lack of information on the sturgeon's 
biological and habitat needs.
    Following our listing decision, the Alabama-Tombigbee Rivers 
Coalition (Coalition) brought suit in the United States District Court 
for the Northern District of Alabama under the citizen-suit provision 
of the Act and the judicial review provisions of the Administrative 
Procedure Act (5 U.S.C. 551 et seq.), alleging several defects in the 
listing process. The District Court dismissed the Coalition's lawsuit 
for lack of standing, but on appeal, the U.S. Court of Appeals for the 
Eleventh Circuit reversed the District Court's decision, concluding 
that the Coalition did have standing to challenge the listing decision. 
On remand, the District Court granted the United States' motion for 
summary judgment but ordered us to issue both a proposed and a final 
rule designating critical habitat by May 14, 2006, and November 14, 
2006, respectively. Alabama-Tombigbee Rivers Coalition et al. v. Norton 
et al., No. CV-01-0194-VEH (Final Order, Nov. 14, 2005). The Coalition 
appealed and the District Court stayed the judgment pending review by 
the Eleventh Circuit. Under the direction of the District Court, we 
would have 2 years from the time of the Eleventh Circuit's decision to 
complete the designation of critical habitat.
    On February 8, 2007, the Eleventh Circuit affirmed the decision of 
the District Court, finding among other things that vacating the 
listing decision was not the proper remedy for failure to designate 
critical habitat. Alabama-Tombigbee Rivers Coalition et al. v. 
Kempthorne et al., 477 F.3d 1250 (11th

[[Page 26489]]

Cir. 2007). On May 16, 2007, the Eleventh Circuit issued its judgment 
as a mandate, thus lifting the stay imposed by the District Court and 
requiring us to issue a prudency determination and, if prudent, a 
proposed rule designating critical habitat within 1 year (May 16, 
2008), and a final rule designating critical habitat within 1 year 
after that (May 16, 2009). The Coalition sought Supreme Court review of 
the Eleventh Circuit's decision; that request was denied on January 7, 
2008. See Alabama-Tombigbee Rivers Coalition et al. v. Kempthorne et 
al., 128 S. Ct. 877 (2008).
    We published the proposed designation of critical habitat for the 
Alabama sturgeon in the Federal Register on May 27, 2008 (73 FR 30361). 
That proposal had a 60-day comment period, ending July 28, 2008. On 
December 30, 2008, we announced the opening of a public comment period 
and the scheduling of a public hearing on the proposed revised 
designation of critical habitat for the Alabama sturgeon (73 FR 79770). 
We also announced the availability for public comment of a draft 
Economic Analysis (DEA) and an amended required determinations section 
of the proposal. In addition, we sought comment on our proposal to 
change the first primary constituent element (PCE) from its original 
description because we had determined that the original wording failed 
to indicate that the flow needs of the species are relative to the 
season of the year. The comment period was opened for 30 days from 
December 30, 2008, to January 29, 2008. We then published a notice on 
January 28, 2009 (FR 74 4912), extending the comment period to allow 
all interested parties an additional opportunity to comment after the 
public hearing that was also held on January 28, 2009. This comment 
period closed on February 9, 2009.
    For more information on previous Federal actions or for more 
information on the endangered Alabama sturgeon or its habitat, refer to 
our proposed and final listing rules published in the Federal Register 
on March 26, 1999 (64 FR 14676), and on May 5, 2000 (65 FR 26438), 
respectively, or request copies of them from the Alabama Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). We are 
designating critical habitat in accordance with section 4(b)(2) of the 
Act.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Alabama sturgeon during two 
comment periods. The first comment period associated with the 
publication of the proposed rule (73 FR 30361) opened on May 27, 2008, 
and closed on July 28, 2008. We also requested comments on the proposed 
critical habitat designation and associated draft economic analysis 
during a comment period that opened December 30, 2008, was extended on 
January 28, 2009, and closed on February 9, 2009. We received two 
requests for a public hearing. We held a public hearing on January 28, 
2009. We also contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and draft economic analysis during 
these comment periods.
    During the first comment period, we received 12 comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received 22 comment letters addressing 
the proposed critical habitat designation or the draft economic 
analysis. During the January 28, 2009, public hearing, 11 individuals 
or organizations made comments on the designation. All substantive 
information provided during comment periods has either been 
incorporated directly into this final determination or addressed below. 
Comments received were grouped into four general issues specifically 
relating to the proposed critical habitat designation for Alabama 
sturgeon and are addressed in the following summary and incorporated 
into the final rule as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise that includes familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from all three 
of the peer reviewers.
    We reviewed all comments received from the peer reviewers for 
substantive issues and new information regarding critical habitat for 
the Alabama sturgeon. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final critical habitat 
rule. Some reviewers suggested minor editorial changes. These have been 
incorporated into the final rule as appropriate. Specific peer reviewer 
comments are addressed in the following summary and are also 
incorporated into the final rule as appropriate.
    (1) Comment: One reviewer mentioned that in the rule we state the 
life span of the Alabama sturgeon is unknown, yet we then estimate 
individuals could live from 12 to 15 years, possibly longer.
    Our Response: Although the life span of the Alabama sturgeon in the 
wild is unknown, Burke and Ramsey (1985) provided estimates on three 
individuals that ranged from 2 years to 10 years of age. In general, 
all sturgeon species are long-lived species, some may live longer than 
15 years.
    (2) Comment: The reviewer understands that the critical habitat 
proposal must be based on the known range of the species at the time it 
was listed as ``endangered'', but suggests that it might be prudent to 
expand the section to match the species historical range.
    Our Response: According to section 3 of the Act, critical habitat 
includes those areas that are occupied at the time of listing that 
contain the physical and biological features necessary for the 
conservation of the species. Areas not occupied at the time of listing 
can be included only if it is determined that they are essential to 
conservation of the species and that including only areas occupied at 
the time of listing in critical habitat may not be adequate to conserve 
the species. Based on our best available information (collection 
records and supporting PCEs), we have determined that such unoccupied 
areas are not essential to the conservation of the species.
    (3) Comment: Would habitat descriptions from recent collections of 
larval and juvenile pallid and shovelnose sturgeon in the Mississippi 
River be of use in trying to define the preferred habitats of larval 
and juvenile Alabama sturgeon in the Alabama River?
    Our Response: Yes. We considered all recently published information 
on these topics in the rule.
    (4) Comment: One reviewer suggests that there has been a gradual 
decline in the Alabama River discharge recently. They referenced the 
continued lowering of an industry's intake pipes to account for the 
river's decreasing stage.
    Our Response: This is likely the result of the drought over the 
last two years, or, an increase in upstream withdrawals. We recommend 
referring the issue of lowered industry intake pipes to the Alabama 
Office of Water Resources.
    (5) Comment: One reviewer noted that the sonic-tagged Alabama 
sturgeon was

[[Page 26490]]

released on April 17, 2007, not May 2007.
    Our Response: We appreciate the correction. We have corrected this 
in the final rule.
    (6) Comment: One reviewer stated that they received a credible 
report from an angler that caught an Alabama sturgeon below R.F. Henry 
Lock and Dam on April 11, 2008.
    Our Response: This report was considered in the rule.
    (7) Comment: One reviewer stressed the importance of river 
connectivity. The reviewer then stated the primary reason the species 
is endangered is habitat fragmentation caused by large dams on the 
Alabama River, and that fish bypass or fish passage opportunities 
should be explored further.
    Our Response: Habitat fragmentation was one of the primary reasons 
for listing the species, and we will continue to work with our partners 
to address fish passage in the Alabama River.
    (8) Comment: One reviewer suggests that higher flows from R.F. 
Henry could potentially attract Alabama sturgeon, especially in the 
winter and spring when the species migrates upstream.
    Our Response: The comment is noted and we will continue to work 
with our partners to explore this possibility.
    (9) Comment: One reviewer agrees that the pallid and shovelnose 
sturgeons are acceptable surrogates for the Alabama sturgeon; the 
reviewer also suggests that sturgeon in the genera Pseudoscaphirhynchus 
and Acipenser also have similar life histories that could be applied to 
the Alabama sturgeon. This includes information on temperature and 
dissolved oxygen preferences, migration patterns, reproduction, age and 
growth, habitat preferences, and diet.
    Our Response: In the proposed rule, we stated that we would utilize 
information on the Alabama sturgeon's closest two relatives, the pallid 
and shovelnose sturgeon. However, there are still considerable data 
gaps that could be filled by other sturgeon species. In this final 
rule, we use information resulting from research on other sturgeon 
species in the background sections where appropriate.
    (10) Comment: One reviewer suggests that ``the distance of free-
flowing habitat currently available is likely detrimental to the 
Alabama sturgeon, that is, there is likely NOT enough free-flowing 
habitat for larval development in the reservoirs above Claiborne and 
Millers Ferry locks and dams. The designation of critical habitat as 
outlined in the proposed rule and the revised proposed rule is 
necessary to protect the last remaining habitat for the Alabama 
sturgeon, but improvements in riverine habitat MUST be made in the 
Alabama River for migrating adults and drifting larvae if the species 
is to survive and eventually recover.''
    Our Response: While we designated areas meeting the definition of 
critical habitat, the area designated is essentially the best remaining 
habitat available for the species. We recognize the need to continue to 
improve conditions related to the distance of free-flowing habitat 
within designated critical habitat and elsewhere in the rivers (i.e., 
fish passage) and continue to work with our partners to do so.
    (11) Comment: One reviewer suggests that we spend more time 
discussing the potentially lethal effects of low dissolved oxygen 
levels. He states that levels of 3 milligrams per liter (mg/L) (3 parts 
per million (ppm)) and water temperatures of 22-26[deg] Celsius (C) 
(72-79[deg] Fahrenheit (F)) appeared to be lethal for juvenile Atlantic 
and shortnose sturgeons. Allowing a minimum level of 4 mg/L (4 ppm) in 
the Alabama River may be very close to a lethal level for the Alabama 
sturgeon.
    Our Response: We have used the best available science to determine 
the water quality needs of the Alabama sturgeon. We have reviewed the 
information in the proposed rule and determined that clarification of 
the fifth PCE was required to more clearly state that situations 
involving dissolved oxygen of less than 5 mg/L (5 ppm) would not be the 
norm within the river. We have clarified the fifth PCE to state, 
``dissolved oxygen levels shall not be less than 5 mg/L (5 ppm); except 
under extreme conditions due to natural cause or downstream of existing 
hydroelectric impoundments, where it can range from 5 mg/L to 4 mg/L (5 
ppm to 4 ppm), provided that the water quality is favorable in all 
other parameters.''

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from the State regarding the proposal to designate 
critical habitat for the Alabama sturgeon are addressed below.
    During the first comment period, we received comments from both the 
States of Georgia and Alabama disagreeing with the inclusion of 131.4 
cubic meters per second (cms) (4,640 cubic feet per second (cfs)). 
Following the revision, both States agreed with the first PCE as it 
appears in the final rule.
    (12) Comment: The State of Georgia recommends that the Service 
engage in a NEPA analysis in order to fully address the impact of this 
rule.
    Our Response: It is our position that, outside the jurisdiction of 
the United States Court of Appeals for the Tenth Circuit, we do not 
need to prepare environmental analyses as defined by NEPA (42 U.S.C. 
4321 et seq.) in connection with designating critical habitat under the 
Act. We published a notice outlining our reasons for this determination 
in the Federal Register on October 25, 1983 (48 FR 49244). This 
assertion was upheld by the United States Court of Appeals for the 
Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), 
cert. denied 516 U.S. 1042 (1996)).
    (13) Comment: The State of Georgia requested that the lateral 
extent of the proposed critical habitat should be clarified, and 
identification of activities that may cause stages in the Alabama and 
Cahaba Rivers to decline below the ``ordinary high water mark.''
    Our Response: For the purpose of this rule, we have applied the 
definition for ``ordinary high water mark'' found at 33 CFR 329.11 as 
``the line on the shore established by the fluctuations of water and 
indicated by physical characteristics such as clear, natural line 
impressed on the bank; shelving; changes in the character of the soil; 
destruction of terrestrial vegetation; the presence of litter and 
debris; or other appropriate means that consider the characteristics of 
the surrounding areas.'' It is our position that the ``ordinary high 
water mark'' does not imply that consultation is required every time 
the river stage falls below that point. As stated in the ``Application 
of the ``Adverse Modification'' Standard'' section, activities that 
cause declines in flow, resulting in a decline in river stage, will be 
evaluated on a case by case basis. Activities that may cause stages to 
decline include, but are not limited to, drought conditions and 
excessive water withdrawals.
    (14) Comment: The State of Alabama noted that they are committed to 
continuing to work with the Service, USACE, and other agencies to 
develop a drought operations plan (Alabama Drought Operations 
Procedure--ADROP) for the Alabama River.
    Our Response: We appreciate the proactive steps Alabama has taken 
to begin development of a drought operations plan for the Alabama 
River. We believe this is an important step to ensuring all 
stakeholders fully understand the minimum flow requirements that may be 
imposed during future drought events.
    (15) Comment: The Alabama Governor's Office stated that any flow

[[Page 26491]]

requirement for the designated critical habitat needs to be flexible 
enough to realistically deal with drought conditions.
    Our Response: We appreciate the Office of the Governor's concern 
with this matter. We will continue to work with all stakeholders and 
regulatory agencies to the best of our ability to ensure that this will 
happen. We also will continue working with the State, Industry, and the 
USACE to finalize a drought operations plan for the Alabama-Coosa-
Tallapoosa (ACT) Basin that has an Adaptive Management Approach.

Public Comments

    (16) Comment: One commenter questioned why is it going to take a 
year to complete the designation.
    Our Response: On May 16, 2007, the Eleventh Circuit issued its 
judgment as a mandate, requiring the Service to issue a prudency 
determination and, if prudent, a proposed rule designating critical 
habitat within one year (May 16, 2008), and a final rule designating 
critical habitat within one year after that (May 16, 2009). Alabama-
Tombigbee Rivers Coalition et al. v. Kempthorne et al., 477 F.3d 1250 
(11th Cir. 2007). We needed all of the time allowed by the court to 
review the best scientific information about the species, allow for 
public participation in the process, conduct an economic analysis, 
reviewed comments, and coordinate with stakeholders on the designation.
    (17) Comment: One commenter clearly voiced his objection to this 
designation, stating that it is, ``a waste of time for good people, 
blowing taxpayers' money and unacceptable Federal interference with 
citizen activity and economic growth.''
    Our Response: This action was court-ordered and non-discretionary. 
On May 16, 2007, the Eleventh Circuit issued its judgment as a mandate, 
requiring the Service to issue a prudency determination and, if 
prudent, a proposed rule designating critical habitat within one year 
(May 16, 2008), and a final rule designating critical habitat within 
one year after that (May 16, 2009). Alabama-Tombigbee Rivers Coalition 
et al. v. Kempthorne et al., 477 F.3d 1250 (11th Cir. 2007).
    (18) Comment: One commenter states that, ``the damage to the 
Alabama River and the Alabama Sturgeon were done without intention, to 
disregard further damage to Alabama ecosystems would be an ignorant 
disregard for current environmental science. The building of Claiborne 
Lock and Dam, and the subsequent disruption of the Alabama River 
ecosystem, has had negligible economic benefit in Alabama, but 
protection of the remaining wild places we have will have positive 
effects for tourism and environmental quality.''
    Our Response: Comment noted.
    (19) Comment: The Birmingham Audubon Society fully supports the 
designation and also states that the economic impact of this 
designation is not likely to be a serious burden.
    Our Response: Comment noted.
    (20) Comment: One commenter stated the USACE's locks and dams on 
the Alabama River are not meeting their intended purpose (approximately 
3 boats per month use the locks) and are a waste of Federal dollars. 
The commenter then states ``why not allow these poor counties where 
this waterway goes through--give them the one to two million dollars it 
takes to maintain these locks. Let them put that into economic 
development commissions for the counties and let them decide how to 
develop their own economy.''
    Our Response: Comment noted.
    (21) Comment: One commenter recommended that the Service engage in 
a NEPA analysis in order to fully address the impact of this rule.
    Our Response: See response under Comment (14).
    (22) Comment: The Cahaba River Society (CRS) fully supports the 
designation. They recommend extending the designation an additional 25 
kilometers (km) (16 miles (mi)) of the Cahaba River; upstream to the 
Cahaba National Wildlife Refuge, as well as the Alabama River above 
R.F. Henry Lock and Dam, up the Coosa River to Jordan Dam, and up the 
Tallapoosa River to Thurlow Dam.
    The CRS believes that this and other critical habitat designations 
will be a powerful tool for improving understanding among developers, 
builders, and land-use decision-makers about the importance of natural 
flow regimes, morphology and stability of river channels, the value of 
free-flowing habitat, and the significance of water chemistry to 
maintain a healthy river fauna that otherwise will not be confronted. 
The CRS goes on to state that, ``in the long run, the educational value 
of designating critical habitat is among the most important of the 
benefits attained.''
    Our Response: Based on the best available scientific information, 
we have concluded at this time that the lower Coosa and Tallapoosa 
Rivers were not occupied at the time of listing. The last Alabama 
sturgeon records we have from these rivers are prior to the 
impoundments on the Alabama River. The current upper boundary on the 
Cahaba River was based on the general location of the ``fall line'' and 
has been used as such for other species (e.g., in the critical habitat 
for three threatened mussels and eight endangered mussels in the Mobile 
River Basin (69 FR 40083)). If information becomes available that 
sturgeon were utilizing these stretches at the time of listing, or that 
this area is essential to the conservation of the sturgeon, this rule 
could then be revised based on the new information.
    (23) Comment: One commenter stated that ``given the absence of the 
species in large areas of the proposed critical habitat we recommend 
additional clarification is provided that clearly states how such areas 
are essential for the conservation of the species.''
    Our Response: We agree that certain areas might not appear to be 
occupied some of the time; however, sturgeons are not stationary 
species. It is not uncommon for some species to migrate up to 578 km 
(359 mi) to spawn, and then drift another 240 km (149 mi) as larvae 
develop (DeLoney et al. 2007; Hrabik et al. 2007). We believe the 
entire unit, as designated, was occupied at the time of listing and 
contains one or more PCEs throughout the unit. Therefore, the areas 
designated meet the definition of occupied critical habitat as set 
forth in the Act.
    (24) Comment: Two commenters believe the Service lacks the 
information to support that Alabama sturgeon could occupy the Cahaba 
River and impounded areas above Claiborne, Millers Ferry, and R.F. 
Henry lock and dams.
    Our Response: In July 2000, an Alabama sturgeon was collected near 
the mouth of the Cahaba River, and we have reliable information that an 
individual was collected and released in April 2008 by an angler 
immediately below R.F. Henry Dam. Additionally, based on our best 
available knowledge of other sturgeon species, these individuals will 
move considerable distances from the points at which they were 
collected. Although we do not have recent records from the Claiborne 
pool, it contains one or more PCEs and is contiguous with occupied 
habitats upstream and downstream; we conclude it was used by the 
species in its movements up and down the river at the time of listing.
    (25) Comment: One commenter believes our approach to identifying 
the physical and biological requirements of the Alabama sturgeon is 
``flawed'' because we state that we use information on the pallid and 
shovelnose sturgeon.

[[Page 26492]]

    Our Response: The Alabama sturgeon is an extremely rare species and 
little information is available about its physical and biological 
requirements. Therefore, as required by the Act, we used the best 
available information which was generated mainly through the studies of 
two of its closest relatives, the pallid and shovelnose sturgeon. 
Considerable information has been recently published about the pallid 
and shovelnose (cited in the proposed rule), and that information was 
used as a basis for many of the assumptions made for the physical and 
biological requirements. We believe that this is the best scientific 
data available as required by the Act.
    (26) Comment: One commenter questioned our use of ``stable'' in PCE 
Number 2. They also question the association of mussel beds with stable 
substrates.
    Our Response: For the purpose of this analysis, stable refers to 
consolidated bed materials that contain substrate materials that are 
somewhat embedded and not easily moved. The presence of mussel beds in 
these areas is simply used to illustrate that these areas have not 
likely been disturbed in the recent past.
    (27) Comment: One commenter did not understand how the fourth PCE 
could apply to impounded areas of the Alabama River, because of the 
presence of Claiborne, Millers Ferry, and R.F. Henry Locks and Dams.
    Our Response: We are not implying that the impounded areas contain 
the fourth PCE. Presence of all PCEs is not required for designation. 
We believe the entire unit, as designated, was occupied at the time of 
listing and contains one or more PCEs throughout the unit. Therefore, 
the areas designated meet the definition of occupied critical habitat 
as set forth in the Act.
    (28) Comment: One commenter recommended the Service exclude all 
existing Federally-maintained channels, marinas, boat ramps, public 
swimming areas and docking facilities within the specified reach, 
existing within-bank dredged material disposal areas, and Federal 
reservoirs, locks and dams, because of the importance of navigation and 
recreation on the Alabama River and hydropower generation by Federal 
power plants.
    Our Response: As was stated in the proposed rule (73 FR 30373), 
critical habitat does not include manmade structures (such as 
buildings, aqueducts, docks, dams, runways, roads, and other paved 
areas) and the land or waterway on which they are located within the 
legal boundaries of this rule. However, this language does not include 
waterways (i.e., Federal reservoirs), public swimming areas, and 
existing within-bank dredging material disposal areas that are owned by 
the State of Alabama, found to be occupied at the time of listing, and 
to contain one or more PCEs needed by the Alabama sturgeon; which is 
why these areas have been included within the designation.
    (29) Comment: One commenter was unclear how or when section 7 
consultation would be required.
    Our Response: As stated in the final rule, section 7(a)(2) of the 
Act requires Federal agencies, including the Service, to ensure that 
actions they fund, authorize, or carry out are not likely to destroy or 
adversely modify critical habitat. Decisions by the Fifth and Ninth 
Circuit Courts of Appeals have invalidated our definition of 
``destruction or adverse modification'' (50 CFR 402.02) (see Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 
(9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife Service et 
al., 245 F.3d 434, 442 (5th Cir. 2001)), and we do not rely on this 
regulatory definition when analyzing whether an action is likely to 
destroy or adversely modify critical habitat. Under the provisions of 
the Act, we determine destruction or adverse modification on the basis 
of whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain those PCEs 
that relate to the ability of the area to periodically support the 
species) to serve its intended conservation role for the species. 
Please refer to the Section 7 Consultation section of the rule below 
for further discussion.

Comments About Flow and Water Management

    The majority of the comments during the initial comment period 
(ending July 27, 2008) were specific to the first PCE, especially the 
131.4 cms (4,640 cfs) flow requirements. As stated in the revised rule 
(73 FR 79772), we removed the 131.4 cms (4,640 cfs) from the first PCE 
because we believed focusing on 131.4 cms (4,640 cfs) failed to account 
for the complexity of variables that needs to be analyzed to determine 
effects to the sturgeon.
    (30) Comment: We received a total of eight written comments during 
the initial comment period (ending July 28, 2008) that addressed flow 
and the value included in the first PCE (131.4 cms (4,640 cfs)). All 
comments, in various ways, specifically questioned the biological 
relevance of the 131.4 cms (4,640 cfs) flow.
    Our Response: We have historically and consistently maintained that 
a 7-day average minimum flow of 131.4 cms (4,640 cfs) in the Alabama 
River at Montgomery is ``adequate to sustain the Alabama sturgeon 
during periods of drought.'' Proposals to allow flows to go below that 
level are likely to continue to occur during drought conditions (but 
could be proposed at other times) and we would recommend Federal 
agencies enter into consultation on such proposals whenever they occur 
because adverse effects are possible. We agree that the flow was not 
created as a ``sturgeon'' flow, but rather a ``navigation'' flow. The 
origin of the 131.4 cms (4,640 cfs) can be traced back to a 1972 letter 
from Alabama Power Company (APC) to the USACE where APC concurs that a 
7-day average flow of 131.4 cms (4,640 cfs) is acceptable for a trial 
period. It goes on to state that the 131.4 cms (4,640 cfs) is based on 
the 7Q10 for the USGS Gage at Montgomery.
    We revised the proposed rule in order to better clarify our 
position on the 131.4 cms (4,640 cfs) flow. The revision changed the 
first PCE to the following:

    A flow regime (i.e., the magnitude, frequency, duration, 
seasonality of discharge over time) necessary to maintain all life 
stages of the species in the riverine environment, including 
migration, breeding site selection, resting, larval development, and 
protection of cool water refuges (i.e., tributaries).

    We changed the first PCE from its original description, because we 
determined that the original wording failed to indicate that the flow 
needs of the species are relative to the season of the year. For 
example, sturgeon likely need a higher flow in the spring to 
successfully spawn than was indicated by the 131.4 cms (4,640 cfs) in 
the original PCE. Also, we determined that it was more descriptive and 
helpful to potential action agencies to describe the flow habitat needs 
of the species in relation to their seasonality and how those seasonal 
flows allow for maintenance of all life stages. Lastly, we determined 
that while we believe flows lower than 131.4 cms (4,640 cfs) may 
involve adverse affects to the species (and therefore we will continue 
to recommend consultation), depending upon other factors, lower flows 
may or may not be found to result in measurable adverse effects. 
Therefore, focusing on 131.4 cms (4,640 cfs) in the PCE fails to 
account for the complexity of variables that need to be analyzed to 
determine effects to the sturgeon. We will continue to use 131.4 cms 
(4,640 cfs) as a trigger for section 7

[[Page 26493]]

consultation, but not necessarily a threshold for adverse modification.
    (31) Comment: One commenter indicated the Service has not 
demonstrated why additional requirements or regulatory PCEs (for flows) 
are necessary for water quality.
    Our Response: It was not our intent to designate additional flow 
requirements in order to ensure State water quality compliance. As 
stated by the commenter with this question, it is the responsibility of 
the Alabama Department of Environmental Management (ADEM) to ensure 
Clean Water Act compliance through the issuance and enforcement of 
National Pollution Discharge Elimination System (NPDES) permits.
    (32) Comment: APC noted that they are committed to continuing to 
work with the Service, USACE, and other agencies to develop a drought 
operations plan (Alabama Drought Operations Procedure--ADROP) for the 
Alabama River.
    Our Response: We appreciate the proactive steps APC has taken to 
begin development of a drought operations plan for the Alabama River 
(i.e., ADROP). We believe this is an important step to ensuring all 
stakeholders fully understand the minimum flow requirements that may be 
imposed during future drought events.
    (33) Comment: APC presented summaries of the data (discharge, 
temperature, and dissolved oxygen levels) they collected on August 5, 
2008, and October 21, 2008, at various locations on the Alabama River 
downstream of Claiborne Lock and Dam. One of these locations was a 
USACE dredge site that has been dredged the last two years and has been 
routinely occupied by the tagged Alabama sturgeon. They concluded that 
temperature and dissolved oxygen levels were fairly well mixed at these 
locations and further suggested that the tagged fish may not be 
adversely affected by dredging.
    Our Response: We appreciate APC's efforts to analyze flow, 
temperature, and dissolved oxygen levels in these areas. This 
information will be very useful as we analyze habitats that have been 
occupied by the tagged fish. However, upstream of Claiborne Lock and 
Dam conditions are likely quite different and will likely yield very 
different results. Upstream of the dams (Claiborne and Miller Ferry) 
conditions very much like a reservoir and are not as well mixed as 
areas downstream of Claiborne Lock and Dam, which receives a constant 
flow from the crested spillway. Therefore it would not be a fair 
comparison to correlate these results with upstream areas that do not 
receive a constant flow.
    (34) Comment: The USACE believes the Memorandum of Agreement (MOA), 
which includes the 1994 ``White Paper'', has served to protect the 
Alabama sturgeon and its habitat. They believe that the MOA should be 
referenced in the rule, acknowledging its protective value. They 
believe it should continue to be adhered to in absence of newer 
biological information.
    Our Response: The 1994 ``White Paper'' is referenced in several 
locations in the rule and we will continue to use it. However, we will 
also modify it as needed and make future decisions based on the best 
available science.
    (35) Comment: Although the USACE agrees with the proposed changes 
to the first PCE, they state that, ``if data exist to support the 
designation of a flow regime, then a detailed flow regime should be 
fully described in the PCE with references to supporting studies.'' 
They go on to say, ``without a fully described flow regime, the PCE 
remains flawed, providing uncertain protection to the species as well 
as uncertain economic impacts.''
    Our Response: We do not believe a specific flow measurement would 
be applicable at all times of the year and we do not have the data to 
support a fully described flow regime. Our position continues to 
support a variety of natural, seasonably variable flows that allow for 
maintenance for all life stages of the sturgeon. In order to develop a 
seasonably variable set of flow estimates for the species, we need 
long-term stream gauging records and a continuous water quality 
monitoring network at several points on the Alabama River. At this 
time, there are a limited number of long term discharge records for the 
Alabama River. The station with the longest period of record (67 years) 
is the USGS station at Montgomery (station ID 0242000). We welcome the 
opportunity to partner with the USACE to begin developing a long term 
discharge and water values study.
    (36) Comment: The APC had several comments about flow requirements 
and the analysis they conducted on the data from the tagged Alabama 
sturgeon below Claiborne Lock and Dam, these include:
    (a) ``The relationship of flow to the specimen's needs is 
inconclusive'' and there is ``no basis to identify any one ideal flow 
for the Alabama sturgeon.''
    (b) ``The specimen's behavior is not consistent with the second 
PCE.'' Also, the behavior of the tagged fish does not indicate a 
preference for deep pools habitats.
    (c) ``There is a significant correlation between the tracked 
specimen's location and historic dredging sites.''
    Our Response: (a) We agree that identifying one ideal flow is 
extremely difficult and may not, in the long run, be the most 
beneficial recommendation for the sturgeon. As stated in clarification 
letter to Industrial Economics (IEc) on October 22, 2008, we believe 
that flow needs for the species are relative to the season of year. We 
removed the 131.4 cms (4,640 cfs) from the first PCE to reflect this 
need for flow seasonality.
    (b) Our statement in the rule indicated that the Alabama sturgeon 
``prefers'' a river channel with stable sand and gravel river bottoms, 
and bedrock walls, including associated mussel beds. This doesn't mean 
that they always occur in these habitats. The conclusions drawn by APC 
are based upon data taken from one fish. Based on the best available 
scientific information on other North American sturgeon species, 
sturgeons do prefer these optimal conditions.
    (c) While we appreciate the effort of APC to summarize and share 
their assessments of the tracking data, we do not completely agree that 
dredging creates favorable conditions for the sturgeon. The tagged 
sturgeon below Claiborne Lock and Dam is likely occupying this section 
of the river because of temperature (flow from Sizemore Creek) or food 
resources. We do agree with APC's hypothesis that adult sturgeon can 
exist under a variety of conditions, and focusing on spawning season 
and the particular needs of eggs and larvae may ultimately have a 
greater effect on long term survival than measures that focus on adult 
specimens. We welcome the opportunity to work with APC to explore these 
ideas.

Comments About the Science Used in This Designation

    (37) Comment: The Alabama-Tombigbee Rivers Coalition (ATRC) urges 
the Service to acknowledge the serious limitations in its scientific 
knowledge of the Alabama sturgeon and its life cycle requirements. They 
maintain virtually nothing is known about where it breeds, spawns, and 
what they do after hatching.
    Our Response: We certainly recognize that our knowledge base is 
limited with the Alabama sturgeon. However, that is why we have elected 
to use the best available scientific information on two of its closest 
relatives, the pallid and shovelnose sturgeon.
    (38) Comment: One commenter, representing the ATRC, agrees that the

[[Page 26494]]

Service ``was justified by selecting the shovelnose and pallid species 
as surrogates to extrapolate the biological and physical information 
for the Alabama sturgeon.'' However, the commenter also suggests that 
there is little to no useful, documented information available to 
validate the information we used in the development of the PCEs. 
Specifically, the commenter questioned the lack of information related 
to the effects of river flow on spawning, spawning behavior, migration 
and aggregation at spawning sites, or egg deposition; substrate 
preferences; growth rates; and diet of the Scaphirhynchus species.
    Our Response: We respectfully disagree with the commenter's belief 
about a lack of useful information on the shovelnose and pallid 
sturgeon. In 2007, the Journal of Applied Ichthyology published an 
entire volume dedicated to the biology and conservation of the three 
North American riverine sturgeons (Volume 23 Issue 4, Pages 289-538 
(August 2007)). Within this one volume there are 30 papers devoted 
exclusively to describing embryonic development, genetic variability, 
larvae distribution and dispersal, habitat use of during different flow 
patterns, gonadal development, evaluating spawning site success, age 
and growth, distribution and movements, and diet composition of larval 
and adult sturgeons of the North American river sturgeons. Although we 
recognize that there are still considerable data gaps in our knowledge 
of these rare fishes, especially in terms of life history requirements, 
we believe it is fair to assume two characteristics that all North 
American sturgeon species (Acipenser and Scaphirhynchus) have in 
common; that they spawn over hard substrates in swift water and that 
they all migrate upstream to spawn. The Act requires us to use the best 
available scientific information available and we have done this 
throughout the rule and especially in the development of the PCEs.
    (39) Comment: One commenter, representing the ATRC, commented that, 
``high spring flows may not be essential to stimulation of sturgeon 
spawning runs.''
    Our Response: Although there are differing opinions on which 
environmental cues are most important in stimulating sturgeon spawning 
movement, available literature generally agree on one factor; that all 
North American sturgeon spawn, or at least attempt to make spawning 
runs in the spring. In the Southeastern United States, this just 
happens to coincide with the wettest season and an extended 
photoperiod; therefore, we believe successful spawning cues are likely 
some combination of the above environmental factors, including high 
spring flows.
    (40) Comment: One commenter, representing the ATRC, commented that 
Alabama sturgeon use similar movements as shovelnose and pallid 
sturgeon, including low flow areas. The commenter also stated that, 
``low flow seems to be of little concern to the Alabama sturgeon, 
pallid sturgeon or shovelnose sturgeon.''
    Our Response: We agree. The fish we have been tracking does occupy 
low flow areas at certain times. We do not, however, have information 
to suggest that this is a desired or preferred condition at other times 
of the year. In addition, we know that higher flows are required during 
specific times of the year to initiate spawning migrations and to allow 
larvae to develop.
    (41) Comment: One commenter, representing the ATRC, made the 
following statement, ``the Endangered Species Act requires that 
critical habitat designation must be based on the best scientific and 
commercial data available.'' The commenter continued by stating the 
Service had failed in this regard by not referencing several 
publications.
    Our Response: We respectfully disagree that we failed to use the 
appropriate references. The literature cited list is available from the 
Alabama Ecological Services Field Office (See ADDRESSES) and represents 
the best scientific data available relevant to the Alabama sturgeon and 
this designation of critical habitat.
    (42) Comment: One commenter, representing the ATRC, describes in 
detail the chronology of the sonic-tagged Alabama sturgeon's movements 
and patterns from April 2007 through October 2008.
    Our Response: We appreciate this summary of the movements of one 
fish, and have used it in the context of the rest of the best available 
information on the life history and biology of sturgeons.

Comments About Navigation and Dredging

    (43) Comment: One commenter, representing the ATRC, stated that 
dredging could actually benefit the Alabama sturgeon in several ways. 
One of the examples used by the commenter is that dredging may actually 
create habitat by increasing water velocity in pool-like areas, thus 
increasing oxygen levels, cleaning the river bottom of silt and rotting 
leaves, and having a flushing effect on the river.
    Our Response: We recognize that some sturgeon species have proven 
to be adaptive animals, especially in the Mississippi River, but we do 
not believe the evidence supports that dredging will actually increase 
available habitat, thereby increasing the recovery potential of the 
Alabama sturgeon.
    (44) Comment: The ATRC urges the Service to avoid significant 
changes to current channel maintenance practices in the absence of 
specific, new information which provides a valid scientific basis to 
understand how and why it is necessary for conservation purposes.
    Our Response: We review the operations and maintenance dredging 
procedures on the Alabama River every five years and we believe the 
information in the ``1994 White Paper'' is correct until new 
information provides a valid basis to changing our findings on channel 
maintenance and other issues. We will continue to use the best 
available science in making decisions about this and other trust 
resources.

Comments Related to the Economic Analysis

    (45) Comment: Several commenters believe that the economic analysis 
dramatically understates the true potential for adverse economic 
impacts, some believe by a factor of as much as 100. Several of these 
commenters state that when there are uncertainties about the nature and 
breadth of regulatory impacts, the only way to identify the potential 
economic impact is to assume the worst-case scenario and determine 
economic impacts under those circumstances. Specifically, Troy 
University submitted an analysis that the rule has ``the potential to 
destroy approximately $900 million in local output and over $1.6 
billion in the overall U.S. economy.''
    Our Response: The commenters assume that a minimum water flow and a 
cessation of dredging activities in the Alabama River will result from 
critical habitat designation. They further assume that ongoing economic 
activities within the ACT Basin, such as navigation, hydropower 
operations, and industry production that relies on water transport 
(such as pulp and paper), will be curtailed following critical habitat 
designation. These eventualities appear improbable given the history of 
conservation efforts undertaken for the sturgeon to date, and the 
Service's current expectation for future actions. Nonetheless, Section 
3 of the final economic analysis (FEA) recognizes that should the 
Service, in the course of future consultations on river flows in

[[Page 26495]]

extreme drought years, determine that higher flows are necessary to 
maintain suitable habitat conditions for sturgeon conservation, a 
variety of activities including commercial shipping, recreation, or 
hydropower may be impacted. In addition, a text box has been added to 
the economic analysis that describes the analysis submitted by the 
commenter.
    (46) Comment: One commenter states that the benefits of critical 
habitat designation outweigh the risks to the sturgeon caused by the 
designation by an enormous margin. The commenter adds that potential 
benefits include the value to medical research of having a fish that 
has survived since the Jurassic Period, a fully restored commercial 
fishery, and an attraction for historical and nature-based tourism 
(which is important for poor communities' improvement).
    Our Response: As described in Section 1 of the FEA, because the 
Service believes that the direct benefits of the critical habitat rule 
are best expressed in biological terms, the analysis does not quantify 
or monetize benefits. However, a qualitative discussion of the 
potential categories of benefits of sturgeon conservation and critical 
habitat designation is provided in Section 7 of the FEA.
    (47) Comment: One commenter states that justification for not using 
input-output modeling is unsatisfactory because the use of input-output 
analysis is an accepted tool utilized extensively by Federal agencies.
    Our Response: As described in Section 1 of the FEA, regional 
economic impact analysis (commonly using regional input/output models) 
can provide an assessment of the potential localized economic impacts 
of conservation efforts. Specifically, regional economic impact 
analysis produces a quantitative estimate of the potential magnitude of 
the initial change in the regional economy resulting from a regulatory 
action. These models rely on multipliers that represent the 
relationship between a change in one sector of the economy (e.g., 
expenditures by recreators) and the effect of that change on economic 
output, income, or employment in other local industries (e.g., 
suppliers of goods and services to recreators). These economic data 
provide a quantitative estimate of the magnitude of shifts of jobs, 
revenues, and taxes in the local economy. However, for this analysis, 
quantified impacts associated with sturgeon conservation efforts 
primarily result in additional costs incurred due to short term 
shutdowns of dredging operations to avoid the sturgeon. Remaining 
quantified impacts to economic activities dependent upon water 
management (e.g., navigation or hydropower), water quality permitting 
(e.g., pulp and paper mills), and other activities are made up entirely 
of administrative costs of section 7 consultations. Thus, measurable 
impacts of the type typically assessed with input-output models are not 
quantified in this analysis, and thus regional input-out modeling is 
not used. As stated above, Section 3 of the FEA recognizes that should 
the Service, in the course of future consultations on river flows in 
extreme drought years, determine that higher flows are necessary to 
maintain suitable habitat conditions for sturgeon conservation, a 
variety of activities including commercial shipping, recreation, or 
hydropower may be impacted. These impacts may in turn generate regional 
economic effects.
    (48) Comment: One commenter states that the DEA primarily gives 
consideration to agency costs as measured in staff time for engagement, 
but ignores third party costs.
    Our Response: The FEA explicitly considers potential impacts to all 
impacted parties, whether they are Federal agencies, local governments, 
or private parties. Exhibit 1-2 of the FEA presents the administrative 
cost estimates broken down into Service, Federal Agency, and third 
party costs. Section 3 of the FEA discusses potential impacts that 
could occur related to recreators, homeowners, and the navigation 
industry, among others, should additional river flows be required for 
the sturgeon. Section 4 of the FEA discuss potential impacts on NPDES 
permitees, such as the pulp and paper industry, to the extent that 
Alabama sturgeon encourages out-of-compliance NPDES-permitted 
facilities to come into compliance sooner than would already have 
occurred absent the sturgeon.
    (49) Comment: One commenter states that IEc has found less than one 
percent of species (out of 113 endangered species analyses) actually 
would harm the economic environment (which was the Port of Los 
Angeles).
    Our Response: The economic analyses of critical habitat developed 
by the Service, including those developed by the Service's economics 
consultants, are not intended to present a determination of economic 
harm. Instead, these analyses are intended to provide objective 
information on potential economic and other costs of designation, which 
the Secretary can then use in addressing the requirements of section 
4(b)(2) of the Act. The commenter did not present any support for the 
conclusion that only one percent of the studies performed have found 
``harm'' to the economic environment. However, the Service notes that 
the reports produced by IEc and other economics consultants have 
addressed a wide-range of potential economic changes, both regional and 
national in scope, potentially resulting from designation of critical 
habitat.
    (50) Comment: One commenter states that the DEA may not meet 
recommended OMB standards because it does not consider regional growth 
rates or market conditions associated with potentially impacted 
industries.
    Our Response: The U.S. Office of Management and Budget's (OMB) 
guidelines for conducting economic analysis of regulations direct 
Federal agencies to measure the costs of a regulatory action against a 
baseline, which it defines as the ``best assessment of the way the 
world would look absent the proposed action'' (U.S. Office of 
Management and Budget, ``Circular A-4,'' September 17, 2003, available 
at https://www.whitehouse.gov/omb/circulars/a004/a-4.pdf.). In other 
words, the baseline includes the existing regulatory and socio-economic 
burden imposed on landowners, managers, or other resource users 
potentially affected by the listing of the species. Impacts that are 
incremental to that baseline (i.e., occurring over and above existing 
constraints) are attributable to the proposed regulation, in this case 
the designation of critical habitat. As recommended by OMB, the 
baseline incorporates, as appropriate, trends in market conditions, 
implementation of other regulations and policies by the Service and 
other government entities, and trends in other factors that have the 
potential to affect economic costs and benefits, such as the rate of 
regional economic growth in potentially affected industries. In this 
analysis, the anticipated impacts are primarily administrative, with 
some impacts associated with temporary dredging shutdowns. The analysis 
discusses the way in which these impacts relate to the existing 
baseline conditions.
    (51) Comment: One commenter states that there will be little or no 
new economic development if the critical habitat is accepted as 
proposed.
    Our Response: The commenter presents no evidence to support this 
statement.
    (52) Comment: One commenter states that the counties surrounding 
the proposed critical habitat are economically depressed, 
disproportionately African-American, and in need of every possible 
strategic

[[Page 26496]]

advantage to attract new jobs. Designation would therefore violate the 
Council of Environmental Justice's definition of environmental justice, 
in addition to imposing permanent economic impacts from which the 
region will never be able to recover.
    Our Response: Section 2 of the FEA presents demographic statistics 
on the potentially affected region. The critical habitat region does 
exhibit higher than average unemployment and poverty rates, and has 
higher minority populations than areas outside the region. Note that, 
as in Comment 45, the commenter assumes that ongoing economic 
activities within the ACT Basin, such as navigation, hydropower 
operations, and industry production that relies on water transport 
(such as pulp and paper), will be curtailed following critical habitat 
designation. These eventualities appear improbable given the history of 
conservation efforts undertaken for the sturgeon to date, and the 
Service's current expectation for future actions. All quantified 
incremental impacts of critical habitat designation are administrative 
impacts of section 7 consultation, and would not be expected to 
disproportionately affect socio-economically disadvantaged groups.
    (53) Comment: One commenter states that the DEA fails to consider 
certain major impacts on the USACE's channel maintenance activities, 
limits on industrial wastewater discharges, and limits on land use 
activities such as agriculture and silviculture.
    Our Response: The FEA considers impacts to maintenance dredging, 
industrial wastewater discharge, agriculture, and silviculture in 
Sections 4 and 5.
    (54) Comment: One commenter states that additional flow 
requirements could have large economic impacts associated with 
navigation and hydropower generation throughout the basin. Associated 
potential impacts would depend on the magnitude of the requirement, 
timing, and prevailing drought-water budget interactions.
    Our Response: We agree. See Comment 45.
    (55) Comment: Several comments relate to barge traffic within the 
river. One commenter states that access to reliable water 
transportation provides a competitive advantage for the recruitment of 
new industry for this region and cannot be ignored. Another states that 
the use of barge transport for receiving fuel oil at their dock at the 
69th river mile saves them approximately $1 million each year in 
transportation costs. While another states that the DEA seriously 
underestimates the value of barge transportation to the region of the 
State, which is in a socio-economically disadvantaged area.
    Our Response: Sections 3 and 5 of the FEA discuss the water 
transportation industry in the Alabama River, and provide information 
on the value of the industry to the region based on data produced by 
the Coosa-Alabama River Improvement Association. However, the analysis 
does not anticipate large impacts on the barge transportation industry. 
Regarding the stated socio-economic concerns, additional demographic 
information has been added to the FEA in Section 2.
    (56) Comment: One commenter states that Carters Lake and Lake 
Allatoona should be included in any discussions and analysis regarding 
the effects of upstream reservoir storage and flows in the Alabama 
River.
    Our Response: Carters Lake and Lake Allatoona have been 
incorporated into the discussion of potential impacts in Section 3 of 
the analysis.
    (57) Comment: One commenter states that an economic analysis on the 
APC FERC relicensing efforts should be conducted after consultation is 
complete in order to incorporate any agreed-upon minimum flow or 
drought plan.
    Our Response: The timeframe for publication of the critical habitat 
rule was required by the court and precedes the completion of the 
relicensing process for APC. We would agree that an analysis of impacts 
once that process is complete could provide additional information.
    (58) Comment: One commenter states that the DEA assumes the only 
additional costs to the USACE will be costs associated with 
consultation. The commenter adds that the USACE does incur shutdown 
costs without the critical habitat designation, and that within-bank 
disposal of dredged materials could also be affected.
    Our Response: Section 5 of the FEA discusses that impacts to the 
USACE are anticipated to include annual compliance costs incurred by 
the USACE to communicate and coordinate their upcoming activities to 
the Service at the beginning of each dredging season, as well as costs 
incurred by the USACE and its contractors related to temporary dredging 
shutdowns on average once per year between 2009 and 2028. Because (1) 
the Service states in the critical habitat rule that only the dredging 
of consolidated materials should result in a ``may affect'' 
determination for sturgeon critical habitat and (2) the Service has 
confirmed through