The Sturgeon Conservation Enhancement Act_¹ solves the threat facing commercial captive-bred sturgeon producers and importers from the anticipated designation of four sturgeon species as endangered before the end of 203. This designation will completely exempt sturgeon held in captivity and their progeny from Endangered Species Act (ESA) consultation requirements, prohibitions, and penalties .

On August 25, 2021, the U.S. Fish and Wildlife Service (FWS) proposed to list the Amur sturgeon as endangered. The final decision on this listing is pending and could come out as early as this month. However, this may be delayed as the FWS must consider the additional data that SIAA submitted about the Amur sturgeon population in February. Additionally, on May 22, 2022, the FWS published a proposed rule to list the Russian sturgeon, ship sturgeon, Persian sturgeon, and stellate sturgeon as endangered species. Typically, FWS issues a final rule about a year after issuing the proposed rule. We anticipate FWS will soon publish a final rule listing these four species as endangered and subject to all ESA protections. FWS likely will impose an effective date between 30 and 60 days after the final rule is published. In addition to these pending listings, the FWS has begun considering listing the Siberian sturgeon as threatened or endangered but has not yet proposed a rule. This listing is about a year behind the listings described above.

Upon the listing of any of these species the SIAA could sue to stop the implementation of the rule while the case is being reviewed. There is a strong argument that it should be paused while a court reviews the rule. This would give the Alliance additional time to pass a more permanent legislative solution.
If any of these species are listed as endangered, every person and company operating in the United States will be prohibited from importing, possessing, selling, delivering, carrying, transporting, shipping, and engaging in other “take” activities of the four sturgeon species pursuant to 16 U.S.C. § 1538(a).

• The pending listings discussed above are the most recent effort to impose federal regulation via the ESA on sturgeon species. Prior ESA sturgeon listings include:
• March 11, 1967: Listed the Shortnose sturgeon as endangered.
• September 6, 1990: Listed the Pallid sturgeon as endangered.
• September 30, 1991: Listed the Atlantic sturgeon as threatened.
• September 6, 1994: Designated a distinct population segment (DPS) of the White sturgeon and listed it as endangered.
• May 5, 2000: Listed the Alabama sturgeon as endangered.
• April 8, 2004: Listed the Beluga sturgeon as threatened.
• May 9, 2006: Designated a DPS of the Green sturgeon and listed it as threatened.
• September 1, 2010: Listed the Shovelnose sturgeon as threatened.
• February 6, 2012: Designated DPSs of the Atlantic sturgeon and listed them as either endangered or threatened.
• June 2, 2014: Listed the Adriatic sturgeon, Chinese sturgeon, European sturgeon, Kaluga sturgeon, and Sakhalin sturgeon as endangered species.
• April 26, 2021: Listed the Yangtze sturgeon as an endangered species.

To fix this problem for all sturgeon species, Brownstein has worked closely with the House Natural Resources Committee and members of Congress who have sturgeon farms in their districts. As a result of this work, Congressman Greg Murphy is planning to introduce the Sturgeon Conservation Enhancement Act. This legislation will exempt captive-bred sturgeon from the ESA in two key ways.

First, it amends 16 U.S.C. § 1538(b) to exempt any “sturgeon legally held in captivity or in a controlled environment on the date of enactment” and its progeny from all of the ESA prohibitions in 16 U.S.C. § 1538(a). With the exemption, shipping, selling, and trading captive-bred sturgeon and sturgeon products in interstate and foreign commerce will continue to be allowed. This would apply to all sturgeon in captivity at the time of the legislation becoming law. Without the exemption, those activities will be subject to federal control, prohibited, subject to civil and criminal penalties pursuant to 16 U.S.C. § 1540.

Second, the proposed act will exempt captive-bred sturgeon and their progeny from 16 U.S.C. § 1536(a)(2), which requires each federal agency to consult with FWS to ensure the actions they fund, authorize, permit, and undertake will not jeopardize any species listed as endangered or threatened.

The Sturgeon Conservation Enhancement Act is modeled after 16 U.S.C. § 1538(b)(2)(A). That law exempts raptors legally held in captivity or a controlled environment and their progeny from the prohibitions in 16 U.S.C. § 1538(a) since 1978. A key purpose of the “raptor exemption” was to permit the commerce of birds to encourage genetic diversity in captive breeding programs. A similar exemption is the most effective way to prohibit FWS from imposing ESA prohibitions and penalties on captive-bred sturgeon. Additionally, by adding an exemption from 16 U.S.C. § 1536(a)(2), the Sturgeon Conservation Enhancement Act will release captive-bred sturgeon from the federal agency consultation process.

SIAA and BHFS began the effort to protect sturgeon commerce at the administrative level by working to convince the FWS to list captive sturgeon separately than the wild populations so that trade in farmed sturgeon could continue in the US. Based on the feedback we received, the Sturgeon Conservation Enhancement Act is preferable to pursuing a determination from FWS that captive-bred Amur sturgeon, Russian sturgeon, ship sturgeon, Persian sturgeon stellate sturgeon and Siberian sturgeon are a separate DPS from wild sturgeon that do not warrant ESA protections. The DPS approach makes logical sense, because the farming of sturgeon has either no effect on wild populations, or a positive effect in reducing demand for wild sturgeon. However, discussions about a split listing through separate DPS units have garnered significant pushback from the FWS.

In 2015, FWS changed its policy on captive populations in a decision related to chimpanzees. Prior to 2015, FWS treated captive chimpanzees as a DPS separate from the endangered wild population. However, in 2015, they changed this policy and concluded the ESA does not allow this split designation. While BHFS believes that this approach is wrong and could be the basis for a strong legal challenge, the current career staff at FWS is unlikely to reverse this policy. BHFS has had multiple conversations to convince them of the problems with this policy, but they are dug into their position. Additionally, with Democrats in charge of the agency, they are very unlikely to overrule the career scientists without significant Congressional pressure.

The Sturgeon Conservation Enhancement Act is an efficient and effective solution. We urge all members of the Sturgeon Industry Alliance of America to support the passage of the proposed Sturgeon Conservation Enhancement Act. Following the introduction of the bill, we will provide supportive actions that members can take to help our efforts.

 ¹ Current working title that may change before bill introduction.