Federal Government Considers Listing the Atlantic Sturgeon as Endangered, Solicits Comments

On January 6, 2010, the National Marine Fisheries Service (NMFS) completed its review of the Natural Resources Defense Council’s petition to list the Atlantic sturgeon as a threatened or endangered species.  NMFS concluded that the petition presents substantial information indicating that the requested listing may be warranted.  NMFS now seeks comments from interested parties, including those who would be impacted by the proposed listing.  Comments must be submitted to NMFS by February 5, 2010.

Background:  Listing Sought by the Natural Resources Defense Council

In October 2009 the Natural Resources Defense Council (NRDC) filed its petition requesting that NMFS list the Atlantic sturgeon as endangered under the federal Endangered Species Act.  In the alternative, NRDC requested that the Atlantic sturgeon along the eastern coast between Maine and Florida be divided into five distinct population segments, with three of the population segments listed as endangered and two of the segments – including the Gulf of Maine Distinct Population Segment – listed as threatened.  NRDC also petitioned NMFS to designate critical habitat for the threatened or endangered fish.

The Gulf of Maine Distinct Population Segment (DPS) includes the Penobscot River, and the estuarial complex of the Kennebec, Androscoggin, and Sheepscot rivers, all of which are in Maine.  The DPS also extends south and includes the Merrimack River in Massachusetts and New Hampshire. 

While along the eastern seaboard dams blocking Atlantic sturgeon from accessing historic spawning grounds are identified as posing one of the greatest threats to the fish, in Maine only the Veazie Dam on the Penobscot River inhibits the sturgeon from accessing historic habitat.  Dams on the Kennebec, Androscoggin, and Sheepscot rivers either are above or at the historic upstream range of the Atlantic sturgeon.  This means that in the Gulf of Maine the primary threats to Atlantic sturgeon, at least in these four rivers and in the estuarial complex associated with the Kennebec/Androscoggin/Sheepscot rivers, likely are related to dredging activities and water quality.

Potential Implications

The Endangered Species Act (ESA) prohibits the “take” of endangered species, which includes harming, harassing, wounding, or killing the species.  Through regulation the same protection typically is provided to threatened species, as well. 

In its January 6 findings on NRDC’s petition, NMFS did not provide any indication whether it believes the information it reviewed favors listing all Atlantic sturgeon as endangered or treating the distinct population segments separately.  (Notably, in the 2007 Status Review of Atlantic sturgeon prepared for NMFS by a panel of scientists, the scientists favored treating the distinct population segments differently and did not recommend listing the Maine DPS as either threatened or endangered.)  While there are some differences between designating a species as threatened as opposed to endangered, if the Atlantic sturgeon is listed as either it should be expected that the unauthorized take of such a fish, even if unintentional, will be illegal and subject to a civil fine of up to $25,000 for each violation.  Criminal penalties of up to $50,000 and one year imprisonment also may be imposed for each violation.  Additionally, any person, not just the government, may file suit to stop an alleged violation.

Although the ESA strictly prohibits an unauthorized take, it creates two procedures for obtaining authorization for the “incidental take” of a listed species.  First, where a private party desires to engage in an activity that may impact a listed species, it may prepare a habitat conservation plan designed to offset any harmful effects that the proposed activity may have on the protected species and apply for an incidental take permit.  Second, in all instances where there is federal agency action that may impact a listed species (e.g., federal issuance of a permit authorizing dredging or a discharge) that agency would have to consult with NMFS and, through this consultation process, it could be determined that an incidental take permit is necessary.

If the Atlantic sturgeon is listed as either threatened or endangered, all activities with the potential to adversely impact the protected species would be subject to closer scrutiny under the ESA and potentially could require incidental take permits, including municipal and industrial discharges and dredging activities.

If you have any questions about the potential listing of the Atlantic sturgeon, please feel free to contact Bill Taylor at (207) 791-1213 (wtaylor@pierceatwood.com), or Matt Manahan at (207) 791-1189 (mmanahan@pierceatwood.com).