NOAA enacts take prohibition rule for green sturgeon
75 Fed. Reg. 30714 / Vol. 75, No. 105 / Wednesday, June 2, 2010 / Rules and Regulations
DEPARTMENT OF COMMERCE / National Oceanic and Atmospheric Administration
50 CFR Part 223 / Docket No. 070910507–0037–02 / RIN 0648–AV94
Endangered and Threatened Wildlife and Plants: Final Rulemaking To Establish Take Prohibitions for the Threatened Southern Distinct Population Segment of North American Green Sturgeon
SUMMARY: This final ESA section 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 apply the prohibitions listed under ESA section 9 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 provide a variety of methods by which take of the Southern DPS may be authorized. This document also announces the availability of a final draft environmental assessment (EA) that analyzes the environmental impacts of promulgating the 4(d) regulations for the Southern DPS.
This distinct segment of green sturgeon is found from Alaska to California but is only known to reproduce or spawn in California’s Sacramento River. Data indicate a steady decline of juvenile green sturgeon over the last 30 years. The major cause of decline is likely the loss of spawning habitat in California’s Central Valley. Image and caption info from NOAA.
EXCERPT: Under section 9(b)(1) of the ESA, people holding Southern DPS fish in captivity or in a controlled environment prior to the ESA listing are exempt from the prohibitions of section 9(a)(1)(A) and (a)(1)(G) of the ESA and would therefore also be exempt from the prohibitions of this regulation, provide that holding and any subsequent holding or use of the fish is not for commercial activity. The burden of proof that Southern DPS fish were taken prior to listing lies with the individual holding the animals. The prohibitions of this regulation would, however, apply to any progeny of Southern DPS fish taken prior to listing. Any activity involving Southern DPS fish taken prelisting that is authorized, funded, or carried out by a Federal agency would also be subject to the consultation requirements of section 7 of the ESA.
We apply the section 9 take prohibitions to the Southern DPS, while providing exceptions for some activities (i.e., some types of research/monitoring, enforcement, emergency rescue/salvage, and habitat restoration; see Exceptions, Criteria for Exceptions, and Reporting requirements) that NMFS finds will not impede, and in most cases will promote, the conservation of the species. However, if the activity is federally funded, authorized, or implemented, it will still be subject to NMFS’ review under the ESA jeopardy standard (i.e., ESA section 7(a)(2)).