Inadequacy of Existing Regulatory Mechanisms
Regulatory mechanisms are required for pallid sturgeon recovery and to ensure long-term conservation of the species. These mechanisms affect many aspects of legal protection, such as habitat and flow protection, regulation and/or control of nonnative fishes, regulation of
hazardous-materials spills, and harvest. In determining whether the inadequacy of existing regulatory mechanisms constitutes a threat to pallid sturgeon, our analysis focused on existing State and Federal laws and regulations that could potentially address the main threats to the species described under Factors A and B, and potential new threats described under Factor E.
All States whose waters are occupied by pallid sturgeon have enacted legislation intended to preserve water quality. Generally these State regulations parallel comparable Federal legislation; in some cases, State statutes may impose requirements that are more stringent than the Federal law. In all cases, Clean Water Act requirements must be adhered to and are enforced in conjunction with State statutes and regulations implemented by the State administrative agencies.
Many States have enacted legislation and processes specifically to allocate water resources. Generally, water use permits are obtained from the appropriate State or local administrative agencies. Most States have instream-flow laws intended to maintain “beneficial use” of water left in streams for wildlife. However, these laws typically only protect minimum flows believed necessary to maintain the fishery. Lacking, in many cases, are completion of adjudication processes and full inventories of current allocations. Without these data it is difficult to determine if important waters for pallid sturgeon have been or could become over-allocated resulting in future adverse effects.
In addition to Federal protection under the Endangered Species Act, pallid sturgeon are protected by State designations such as “endangered,” “threatened,” or “sensitive.” These designations typically prohibit intentional take and harvest of any pallid sturgeon. Depending on local demographic conditions, these designations may need to remain in place within some States after the species is delisted.
When delisted, States within the pallid sturgeon’s range have the authority to continue State protections or to manage and establish commercial and recreational harvest limits for the species within their borders. Long-range migratory species are often considered ‘interjurisdicitonal’ and may be co-managed with neighbor States or through organizations like the Mississippi Interstate Cooperative Resources Association; an organization of 28 State agencies that formed as a partnership to improve management of aquatic resources in the Mississippi River Basin. State regulations currently provide protections against take of pallid sturgeon associated with commercial, recreational, scientific, and educational purposes. For the most part, these regulations are adequate to protect pallid sturgeon from direct intentional taking. However, in 2010 incidental harvest of pallid sturgeon during commercial shovelnose sturgeon harvest was documented in several States where pallid and shovelnose sturgeon are sympatric. This resulted in a Federal rule treating shovelnose sturgeon as threatened under the Act due to similarity of appearance to pallid sturgeon (75 FR 53598-53606). When delisted, State regulatory mechanisms and/or designations will need to ensure continued long-term management and protection for the species.
Summary of State Regulations
While States have implemented many regulations to protect and conserve resources through a mechanism of project proposal review and permitting, these efforts likely are limited by a lack of biological and/or ecological data on pallid sturgeon and their ecological thresholds. For example, levels of contaminants that generate negative effects in pallid sturgeon have not been fully quantified, limiting the ability to establish protective State standards. Another limitation of State permitting processes is cumulative effects evaluations. Considering cumulative environmental effects in the permitting process requires an understanding of ecological thresholds, baseline conditions, and life history requirements for many species, as well as their response to multiple environmental stressors. Unfortunately, with respect to the pallid sturgeon, much of this remains unknown. Finally, when the species is delisted, State regulations will be necessary to manage and protect the species.
In addition to State regulations, activities that affect either pallid sturgeon or its habitat are regulated under Federal laws. Notable Federal regulations that address pallid sturgeon and their habitat are; the Clean Water Act (CWA), River and Harbors Act of 1899, Federal Power Act, National Environmental Policy Act (NEPA), and the Fish and Wildlife Coordination Act (FWCA).
The Clean Water Act (CWA) (33 U.S.C. §§1251 et seq.) regulates pollutant discharges into the nation’s waters. This is accomplished through defining, monitoring, and regulating water quality standards for all surface waters, establishing industry wastewater standards, and protecting aquatic life and habitats through permitting. Pertinent regulations can be found at 40 C.F.R., CH 1, subchapter D-water programs (§§ 110, 112, 116, 117, 122-125, 129-133), 40 C.F.R., CH 1, subchapter N-effluent guidelines and standards (§§ 401-471), and 40 C.F.R., CH 1, subchapter O-Sewage sludge (§§ 501, and 503). The CWA affords substantial protections to the pallid sturgeon, its habitat, and life-history requirements through establishing water quality standards and reducing the effects from the discharge of harmful pollutants, contaminants and discharge of dredge or fill material. However, residual effects from historical practices and a lack of species specific information on the sensitivity of the pallid sturgeon to common industrial and municipal pollutants may be limiting the full conservation potential of the CWA as it relates to pollutant discharge and water quality standards.
In addition to regulating pollutant discharges, the CWA also allows the U.S. Environmental Protection Agency (EPA) to establish regulations for cooling water intake structures (§ 316b). Losses of pallid sturgeon through impingement or entrainment from these structures have been documented (see Factor A: Present or Threatened Destruction, Modification or Curtailment of its Habitat or Range, above). Section 316(b) of the CWA requires the Environmental Protection Agency to provide reasonable assurances that aquatic organisms are protected from impingement or entrainment. In 2004, the EPA issued regulations (69 FR 41575-41624) to minimize entrainment and impingement mortality associated with cooling water intakes at power production facilities. However, EPA suspended these regulations in 2007 (72 FR 37107-37109). In 2011, the EPA reopened the public comment period for proposed Section 316(b) requirements for all existing power generating facilities and existing manufacturing and industrial facilities (76 FR 43230-43231). While data are limited or lacking, providing EPA with reach-specific information on pallid sturgeon population size, habitat use, and behavior would be necessary to expect reasonable assurances that the species is protected under subsequent 316(b) provisions of the CWA. For example, local effects to pallid sturgeon associated with entrainment loss may be proportional to species abundance and/or habitat use, as well as intake design and/or location.
Additionally, at low population levels or in areas heavily used by the species, the threat from entrainment may be highest. Conversely, entrainment losses may have little or no impact when population levels are robust or in areas seldom frequented by the species.
The Rivers and Harbors Act (33 U.S.C. §§401,403,407 et seq.) prohibits the construction of any bridge, dam, dike or causeway over or in navigable waterways of the U.S. without Congressional approval. Structures authorized by State legislatures may be built if the affected navigable waters are totally within one State, provided that the plan is approved by the Chief of Engineers and the Secretary of Army (33 U.S.C. 401).
The Federal Power Act (16 U.S.C. §§791-828) provides for cooperation between the Federal Energy Regulatory Commission (FERC) and other Federal agencies, including resource agencies, in licensing and relicensing power projects. The FERC is authorized to issue licenses to construct, operate and maintain dams, water conduits, reservoirs, and transmission lines to improve navigation and to develop power from any streams or other bodies of water over which it has jurisdiction which includes many of the rivers inhabited by pallid sturgeon. An amendment in1986, the Electric Consumers Protection Act, required several provisions to benefit fish and wildlife. Specifically, each license is to contain conditions to protect, enhance, and mitigate fish and wildlife affected by the project (16 U.S.C. §§803 et seq.). These conditions are to be based on recommendations received from the USFWS, the National Marine Fisheries Service, and State fish and wildlife agencies pursuant to the Fish and Wildlife Coordination Act. Additionally, there are requirements under 16 U.S.C. §81, related to operation of navigation facilities, they specify “ The Commission shall require the construction, maintenance, and operation by a licensee at its own expense …such fishways as may be prescribed by the Secretary of the Interior or the Secretary of Commerce, as appropriate.” The Federal Power Act has facilitated conservation of pallid sturgeon and their habitats through improved coordination with fish and wildlife management agencies and has the ability, where applicable, to restore connectivity for pallid sturgeon through mandated fish passage requirements.
The National Environmental Policy Act (NEPA) (42 U.S.C. §§4321-4347 as amended) requires all Federal agencies in the executive branch to consider the effects of their actions on the environment. This act allows cooperating agencies and interested parties to assess proposed Federal projects and their potential significant impacts to the human environment. In general, participants review proposed actions and provide recommendations to the action agency to minimize or avoid environmental impacts. Affects to endangered species are commonly included in these environmental assessments or environmental impact statements; however, endangered status is not required for such considerations. As such, the processes necessary to comply with NEPA would include considerations of pallid sturgeon and their habitats in project planning. However, NEPA provides for disclosure of environmental impacts but does not require minimization. Thus, the degree to which NEPA offers protection to the pallid sturgeon is variable and based upon voluntary adoption of conservation measures. Compliance with NEPA would be improved and provide increased benefit with better information on habitat use and needs of pallid sturgeon within the Missouri and Mississippi river basins.
The Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. §§661-667e as amended) requires Federal agencies funding, sponsoring, or permitting activities give consideration and coordination of wildlife conservation with respect to water resources development programs. Under FWCA, Federal agencies must consult with the USFWS and the State fish and wildlife agencies where the “waters of any stream or other body of water are proposed or authorized, permitted or licensed to be impounded, diverted . . . or otherwise controlled or modified” under a Federal permit or license. Consultation is to be undertaken for the purpose of “preventing loss of and damage to wildlife resources.” Through the FWCA, pallid sturgeon and their habitats are given due consideration in water development activities. However, while the FWCA may result in implementation of conservation measures (i.e., screening of water diversion structures) on new water projects, the FWCA does not afford protections for projects implemented or permitted
prior to its enactment.
Summary of Federal Regulations
Federal environmental regulations have substantially increased environmental protections throughout the pallid sturgeons’ range. However, there are instances where these regulations may not have been adequately followed (US Government Accountability Office (GAO) 2011), possibly resulting in negative effects for the species. In other instances, the implementation of these laws does not offer adequate protection to the pallid sturgeon in that it does not address the specific threats that the species faces. In some cases, lack of empirically derived data, specific to pallid sturgeon or lack of access to available data may be limiting the efficacy of existing Federal regulations.
Factor D Summary
Federal, State, and local regulatory protections have been developed to minimize and mitigate known and potential threats to fish and other aquatic species, as well as their habitats, from anthropogenic activities. While some of these regulatory mechanisms have been helpful and benefited the species, recovery progress made to date is the result of the Endangered Species Act and its enforceable provisions to ensure conservation of listed species. Absent protections under the Endangered Species Act, the existing State and Federal regulations will be inadequate to ensure long-term protection for the species. These regulatory limitations vary across the species range. For example, water development/usage in parts of the species range in Montana is governed by western water law. Under this system in-stream water rights held by Montana Fish Wildlife and Parks are junior to many other users. As a result, during extreme drought situations, senior water users could demand their water resulting in a depletion situation in the areas occupied by pallid sturgeon. Conversely, in the lower reaches of the species’ range it is reasonable to expect that water quantity likely would not be limiting. Additionally, some of the perceived inadequacy of existing regulatory mechanisms to conserve pallid sturgeon primarily relates to a lack of specific information on population size, habitat use, and sensitivity or vulnerability to contaminants, entrainment, and other threats or a lack of easy access to these
data where available. As examples:
- State and Federal environmental regulations enacted to reduce or eliminate environmental contaminants and preserve water quality provide regulatory authority to develop and establish standards and implement pollution control programs. The standards established pursuant to these regulations and through State and Federal permitting processes have benefitted the pallid sturgeon by protecting and improving water quality. However, data suggest that residual contaminants or their derivatives are still negatively affecting the species (see Factor A: Present or Threatened Destruction, Modification or Curtailment of its Habitat or Range, above). Developing specific information on the sensitivity of the pallid sturgeon to common industrial and municipal pollutants and their derivatives will allow for reviewing and if necessary modifying water quality standards specifically to benefit the species.
- Hydrokinetic projects have been proposed throughout the Mississippi River, and there is some degree of risk to pallid sturgeon from entrainment through hydrokinetic turbines, as well as concerns for electromagnetic fields and noises disrupting normal behavior of the fish (see Factor E: Other Natural or Manmade Factors Affecting its Continued Existence, below). Hydrokinetic projects are regulated by the Federal Energy Regulatory Committee.
Through this permitting and licensing process, FERC helps provide reasonable assurances that hydroelectric projects minimize environmental damage, and are coordinated with Federal and State Natural Resources agencies, Indian tribes, and State water quality agencies.
Reach-specific information on pallid sturgeon population size, habitat use, and behavior is necessary to establish reasonable assurances the species is protected under FERC regulations from risks associated with development of hydrokinetic energy.
- Hybridization was identified as a threat to the species when it was listed (55 FR36641-36647). At the time, the prevailing hypothesis related hybridization with habitat alteration that resulted in a breakdown of natural reproductive isolating mechanisms.
However, more recent information suggests that additional data are needed to fully understand the extent and magnitude of hybridization as a threat (USFWS 2007). If hybridization is related to habitat alterations, conserving and restoring habitats may be the only method to reverse this trend. Use of available regulatory mechanisms to address the threat of hybridization are currently limited by lack of information on the natural reproductive isolating mechanisms between shovelnose and pallid sturgeon.
A number of invasive aquatic species have been introduced into the range of pallid sturgeon (see Factor E: Other Natural or Manmade Factors Affecting its Continued Existence, below); however, the threats they may pose to its conservation are poorly known. Numerous State and Federal regulations, including but not limited to, the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (as amended), Injurious Wildlife provisions of the Lacey Act (18 U.S.C. 42; 50 CFR 16), Asian Carp Prevention and Control Act, and Clean Boating Act of 2008, have been developed to:
- Prevent introduction of new invasive species into the wild;
- Halt the spread of invasive species to unoccupied areas
- To control them in areas where they were introduced. Information on the spread and abundance of invasive species, as well as their effects on reach specific pallid sturgeon populations is necessary to determine whether these regulatory mechanisms are adequate to protect the species.
As our knowledge of the species increases, existing regulatory mechanisms can be more effectively designed and implemented.