Comment on FR Doc # N/A

Public Comments Processing Attn: FWS-R4-ES-2008-0058 Division of Policy and Directives Management U.S. and Fish and Wildlife Service 4401 N. Fairfax Drive, Suite 222 Arlington, Virginia 22203 Dear Sir/Madam: This is in response to the notice published in the Federal Register, Volume 73, Number 102, dated May 17, 2008 (FR), proposing to designate approximately 326 miles of the Alabama and Cahaba Rivers in Alabama as Critical Habitat (CH) for the Alabama sturgeon (Scaphirhynchus suttkusi). The notice by the U.S. Fish and Wildlife Service (Service) also requested comments on the proposed CH designation. In our review of the proposed CH we identified the following points that we believe should be clarified or revised prior to a final decision on the designation. 1. Page 30363, column 1, paragraph 1, the notice states “We can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed only when we determine that those areas are essential for the conservation of the species.” In general, we do not believe that the Service has demonstrated that this requirement has been met. As noted in other sections of this letter, areas of the proposed CH either could not be currently occupied by the Alabama sturgeon either by physical barriers to its migration, or by the present absence of Primary Constituent Elements (PCEs). On the other hand, if those areas were occupied by the species, then we would question the scientific validity of the PCEs. An example of such an area would be impounded waters, whereas PCE states that free-flowing water is required as a PCE. Therefore, given the absence of the species in large areas of the proposed CH we recommend additional clarification be provided that clearly states how such areas are “essential for the conservation of the species”. 2. Page 30363, column 2, paragraph 1, the notice states “We are not currently proposing any areas outside the geographical area presently occupied by the species …”. We believe the statement to be inaccurate since there is no evidence of any Alabama sturgeon presently occupying the impounded areas above Claiborne, Millers Ferry, and R.F. Henry, areas that are included in the proposed CH. 3. Page 30363, column 2, paragraph 2, the notice indicates that the physical and biological requirements of the Alabama sturgeon are little known and that the listing of CH considers such requirements of the closest related species, the pallid sturgeon (S. albus) and the shovelnose sturgeon (S. platorynchus). The notice goes on to say that for the latter species little specific information is available regarding physical and biological requirements, but that by synthesizing the best scientific available data on all three species habitat requirements for the Alabama sturgeon were identified. Mobile District believes that such an approach is flawed. Although habitat requirements may share some similarities among the three species, there probably exist large data gaps that could result in a great deal of variation in habitat requirements and therefore inaccurate description of PCEs. We believe the point to be a critical one since a basic understanding of the species’ biological and physical requirements is the foundation for the remainder of the proposed listing of CH. 4. Page 30365, column 1, paragraph 3, and column 3, PCE Number 1, a minimum flow 4,640 cubic feet per second (cfs) in the Alabama River at Montgomery is indicated as being needed to maintain all life stages of the species. Although we agree with the logic that the 4,640 cfs flow, which approximates the 7Q10 value, is generally protective of water quality, and therefore most aquatic organisms including the Alabama sturgeon, we do not agree that there is adequate evidence demonstrating that flow can be specifically incorporated into a PCE. In addition, PCE Number 1 states that 4,640 cfs during “normal” hydrologic conditions. We believe that if such wording remains in the listing, the word “normal” should be rigorously defined. For example “normal” could refer to average rainfall over a specified geographic area, average inflows into upstream reservoirs, or average reservoir elevations. Without further clarification, there is large potential for confusion and mis-application of the PCE requirement. 5. Page 30365, column 3, PCE Number 2, states that river channel with stable sand and gravel river bottoms, and bedrock walls, including associated mussel beds are needed for the species. The word “stable” should be defined using some measurable parameter. Also, if mussel beds are not “associated” with such features are they not included, or are all mussel beds by definition included and therefore define sandbars and gravel bottoms as stable? 6. Page 30365, column 3, PCE Number 4, states that long sections of free- flowing water to allow spawning migrations and development of eggs and larvae are needed by the species. We do not understand how this PCE can apply in impounded areas of the Alabama River. These areas include Corps reservoirs above Claiborne, Millers Ferry, and R.F. Henry Locks and Dams. This is acknowledged in the notice on page 30366, column 3, paragraph 3, where it states, “It is unlikely that Alabama sturgeon habitat and life cycle requirements can be met in long stretches of low flow, such as those that exist in the impounded areas of the river…” We believe the PCE should be rewritten or deleted. 7. Pages 30368-30369, “Effects of Critical Habitat Designation”, describes when Section 7 Formal Consultation would be required of Federal agency and what constitutes adverse modifications of CH. Because of lack of clarity regarding several issues related to the habitat requirements as described in points 1-6 above, it is not clear how or when Section 7 consultation would be required. For example, if it is determined that “normal” hydrologic conditions exist and yet flows at Montgomery are less that 4,640 cfs, would Section 7 consultation be required to avoid draining Corps reservoirs? Would Corps-maintained channels require consultation for each reach? Would routinely dredged reaches become “stable” if not dredged during a specified period of time? Wording at Page 30369, column 3, paragraph 1, seems to indicate that any flow less than 4,640 cfs at Montgomery, whether or not under “normal” hydrologic conditions would potentially require consultation: by whom? 8. Page 30370, column 1, paragraph 5, states, “The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of such specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species”. Mobile District believes that based on that statement, areas exist that should be excluded from CH designation. Those areas include the 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. We believe that because of the importance of navigation and recreation on the Alabama River and hydropower generation by Federal power plants that the benefits of exclusion outweigh the benefits of including such areas. Precedent exists for such exclusion in the listing of CH for the Gulf sturgeon (Acipenser oxyrinchus desotoi) in the Federal Register, Volume 68, Number 53, March 19, 2003, page 13455 for similar features and in other parts of the rule for several specific habitat units for major shipping channels. We recommend that similar exclusions be included in the current listing. 9. Mobile District believes potentially significant economic impacts could result from listing CH for the species. Therefore, we request the opportunity to review and provide further comments on the draft economic analysis being prepared by the Service. We appreciate the opportunity to comment on the proposed CH designation. We recognize the importance of the Endangered Species Act and look forward to cooperating with your agency in balancing those requirements with economic, environmental and engineering issues. Should you have any questions regarding our comments please contact Mr. Chuck Sumner of my staff at (251) 694-3857.