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The National Marine Fisheries Service listed four distinct population segments of Atlantic sturgeon as endangered and one distinct population of Atlantic sturgeon as threatened under the Endangered Species Act on February 6, 2012. This rule would designate critical habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of Atlantic sturgeon. A separate rule would designate critical habitat for the Carolina and South Atlantic distinct population segments of Atlantic sturgeon.

Overall Description of Deadline: Following a complaint from the Natural Resources Defense Council and Delaware Riverkeeper Network, we agreed to submit this proposed rule to the Federal Register by November 30, 2015 for publication.

Statement of Need: The Gulf of Maine, New York Bight, and Chesapeake Bay distinct population segments (DPSs) of Atlantic sturgeon were listed under the Endangered Species Act (ESA) in February 2012. Section 4 of the ESA requires that critical habitat be specified to the maximum extent prudent and determinable at the time a species is listed (16 U.S.C. 1533(b)(6)(C)). The ESA also requires that we publish final critical habitat rules within one year of proposed rules. At the time the Atlantic sturgeon DPSs were listed, we were unable to determine what areas met the statutory definition of critical habitat. We subsequently published a proposed rule to designate critical habitat for these DPSs on June 3, 2016. Under an existing court-ordered settlement agreement, we are required to publish final critical habitat designations by June 3, 2017 - one year from the date of publication of the proposed rules.

Summary of the Legal Basis: Endangered Species Act and court-ordered settlement agreement

Alternatives: During the formulation of the final rule, pursuant to section 4(b)(2) of the ESA, we will evaluate the impacts of designating all and any parts of the proposed critical habitat. We are required to analyze the economic, national security, and other relevant impacts of designating critical habitat. Through this process, we have discretion to exclude areas from the final designation as long as such exclusions do not result in the extinction of Atlantic sturgeon DPSs. Based on our draft impacts analysis supporting the proposed rule, we did not exclude any portions of the proposed critical habitat. We also completed an Initial Regulatory Flexibility Analysis and analyzed a no action alternative, an alternative in which some of the identified critical habitat areas are designated, and an alternative in which all critical habitat areas identified for the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs of Atlantic sturgeon are designated.

Anticipated Costs and Benefits: The primary benefit of critical habitat designation is the protection afforded under section 7 of the ESA, which requires all Federal agencies to insure their actions are not likely to destroy or adversely modify designated critical habitat. In addition to these protections, the designation may also result in other forms of benefits including, but not limited to: educational awareness and outreach benefits, benefits to tourism and recreation, and improved or sustained habitat quality. Costs specifically associated with the designation of critical habitat stem mainly from the requirement that Federal agencies consult with NMFS, under section 7 of the ESA, to insure that any action they carry out, permit (authorize), or fund will not result in the destruction or adverse modification of critical habitat of a listed species.

Risks: If critical habitat is not designated, listed Atlantic sturgeon will not be protected to the extent provided for in the ESA, posing a legal risk to the agency and a risk to the species continued existence and recovery.