NMFS issues final Atlantic sturgeon rule

Monday, August 21, 2017

U.S. fisheries regulators have issued a final rule designating nearly 4,000 river miles in Atlantic watersheds as critical habitat for endangered and threatened Atlantic sturgeon.  The rule increases regulatory complexity and compliance obligations for some hydropower and nuclear power licensees, among others.

The National Marine Fisheries Service, also known as NOAA Fisheries, is an office of the National Oceanic and Atmospheric Administration within the Department of Commerce.  Under the Endangered Species Act of 1973, the Secretary of the Interior and the Secretary of Commerce share, among other things, the responsibility to determine species of fauna and flora to be endangered species and threatened species.  Under a memorandum of understanding with the U.S. Fish and Wildlife Service, NMFS has jurisdiction to list marine fish species.

Once a species is listed as threatened or endangered under the Endangered Species Act, a variety of protections attach to that species.  For example, under Section 7 of the federal Endangered Species Act, federal agencies must generally ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify its designated critical habitat.

Critical habitat is defined in section 3 of the Endangered Species Act as (1) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (a) essential to the conservation of the species and (b) which may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species.
While a critical habitat designation does not directly impact activity on private land that does not involve a federal agency, it does add to the procedures and considerations that any federal agency must undertake if asked to weigh in on an activity affecting critical habitat.  For example, if a hydropower project seeking licensing from the Federal Energy Regulatory Commission (or a nuclear project regulated by the Nuclear Regulatory Commission) includes critical habitat for a threatened or endangered species, the Commission and other federal agencies involved in the licensing must take special actions to protect that critical habitat.

With respect to the five threatened and endangered Atlantic sturgeon distinct population segments, NMFS concluded that specific areas meet the definition of critical habitat for the Gulf of Maine, New York Bight, Chesapeake Bay, Carolina, and South Atlantic DPSs of Atlantic sturgeon, that a critical habitat designation is prudent, and that critical habitat is determinable.  The designations include about 152 miles of aquatic habitat within the Penobscot, Kennebec, Androscoggin, Piscataqua, Cocheco, Salmon Falls, and Merrimack Rivers for the Gulf of Maine DPS; about 340 miles of aquatic habitat within the Connecticut, Housatonic, Hudson, and Delaware Rivers for the New York Bight DPS; about 480 miles of aquatic habitat within the Potomac, Rappahannock, York, Pamunkey, Mattaponi, James, Nanticoke Rivers and Marshyhope Creek for the Chesapeake Bay DPS; about 1,205 miles of aquatic habitat within the Roanoke, Tar-Pamlico, Neuse, Cape Fear, Northeast Cape Fear, Waccamaw, Pee Dee, Black, Santee, North Santee, South Santee, and Cooper Rivers and Bull Creek for the Carolina DPS; and about 1,791 miles of aquatic habitat within the Edisto, Combahee-Salkehatchie, Savannah, Ogeechee, Altamaha, Ocmulgee, Oconee, Satilla, and St. Marys Rivers for the South Atlantic DPS of Atlantic sturgeon.

According to NMFS, it does not believe this rule will have a "significant adverse effect on the supply, distribution, or use of energy."  At the same time, it notes that FERC hydropower licensing and Nuclear Regulatory Commission "have the potential to adversely affect sturgeon as well as its critical habitat".

The final rule will take effect on September 18, 2017.

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