[Federal Register Volume 74, Number 152 (Monday, August 10, 2009)]
[Rules and Regulations]
[Pages 39903-39907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19094]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 226
[Docket No. 0808061060-91139-03]
RIN 0648-AW77
Endangered and Threatened Species; Designation of Critical
Habitat for Atlantic Salmon (Salmo salar) Gulf of Maine Distinct
Population Segment; Final Rule
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration, Commerce.
ACTION: Final rule.
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SUMMARY: We, the National Marine Fisheries Service (NMFS), issue a
final rule to revise the regulatory language that appeared in a final
rule that published in the Federal Register of June 19, 2009. The final
rule designated critical habitat for the Atlantic salmon (USalmo salar)
Gulf of Maine Distinct Population Segment (GOM DPS) under the
Endangered Species Act (ESA). We designated as critical habitat 45
specific areas occupied by Atlantic salmon at the time of listing that
comprise approximately 19,571 km of perennial river, stream, and
estuary habitat and 799 square km of lake habitat within the range of
the GOM DPS and in which are found those physical and biological
features essential to the conservation of the species. We excluded
approximately 1,256 km of river, stream, and estuary habitat and 100
square km of lake habitat from critical habitat pursuant to the ESA. We
issue this final rule to revise the designated critical habitat for the
expanded GOM DPS of Atlantic salmon to exclude all trust and fee
holdings of the Penobscot Indian Nation, and we correct the table to
add an ``E'' to indicate that Belfast Bay is excluded from critical
habitat under the ESA for reasons of economics.
DATES: Effective August 10, 2009.
FOR FURTHER INFORMATION CONTACT: Dan Kircheis, National Marine
Fisheries Service, Maine Field Station, 17 Godfrey Drive, Orono, ME
04473 at (207) 866-7320, or Marta Nammack at (301) 713-1401 ext. 180.
SUPPLEMENTARY INFORMATION: In the proposed rule to designate critical
habitat for the expanded GOM DPS of Atlantic salmon (73 FR 51747;
September 5, 2008), we proposed to exclude under section 4(b)(2) of the
ESA all tribal lands from the critical habitat designation, based on
Secretarial Order 3206 that recognizes Tribes as having the
governmental authority and the desire to protect and manage their
resources in a manner that is most beneficial to them.
In the final rule to designate critical habitat for the expanded
GOM DPS of Atlantic salmon (74 FR 29300; June 19, 2009), we included as
critical habitat Trust and Fee lands owned by the Penobscot Indian
Nation, based on our interpretation of comments that we received from
the Penobscot Indian Nation. In their comments, the Penobscot Indian
Nation stated that ``the Nations Trust landholdings are adequately
identified and appropriately excluded from Critical Habitat
Designation.'' Then they stated, ``Given the extent of important salmon
habitat located within the Penobscot Indian Reservation the Penobscot
Nation asks that the services do not exclude any portion of the
Penobscot Indian Reservation from the designation as Critical Habitat.
The bed, banks, and islands that make up the Penobscot Indian
Reservation are indeed ``critical'' to the survival of wild Atlantic
salmon in the Penobscot River watershed. In fact, the Penobscot Nation
believes that the recovery of the species will not be possible without
adequate access to the Atlantic salmon habitat that is contained within
the Penobscot Indian Reservation.'' We interpreted this to mean that
all of the Penobscot Indian Nation's land should be included as
critical habitat.
On June 22, 2009, we received notice from the Tribe that we
incorrectly included Trust and Fee lands as critical habitat when they
were seeking to include reservation lands. This final rule corrects the
final rule published on June 19, 2009 (74 FR 29300) to exclude all
areas that are Trust and Fee lands of the Penobscot Indian Nation.
Critical habitat on Penobscot Indian lands will remain designated only
for those lands that make up the Penobscot Reservation. The exclusion
of the Trust and Fee lands from the designation of critical habitat
does not diminish the number of functional habitat units below those
needed for the recovery of the species in the Penobscot Bay salmon
habitat recovery unit.
The effect of this correction is to exclude 1,400 instead of 1,256
km of river, stream, and estuary habitat and 127 instead of 100 sq km
of lake habitat from critical habitat pursuant to section 4(b)(2) of
the ESA.
Recent information provided by the Penobscot on Tribal ownership of
lands within the occupied range designated as critical habitat
discloses that the Penobscot Tribe hold approximately 60,500 acres
(244.8 sq km) of Fee lands and lands held in Trust within the areas
occupied by GOM DPS. We have determined that all the rivers, streams,
lakes, and estuaries of approximately 9,500 acres (38.4 sq km) of land
held for the Passamaquoddy tribe already disclosed in the final rule
and approximately 60,500 acres (244.8 sq km) of Fee lands and lands
held in Trust by the Penobscot Nation (not disclosed in the final rule)
within the areas occupied by the GOM DPS are excluded from critical
habitat designation based on the principles of the Secretarial Order
discussed above. The rivers, lakes, and streams within the
approximately 4,400-acre (17.8 sq km) Penobscot Reservation are
included as critical habitat per request of the Penobscot Nation.
We do not believe that exclusion of Penobscot Tribal Trust lands
and Passamaquoddy tribal lands, including their lands in the Downeast
Coastal Salmon Habitat Recovery Unit (SHRU), will reduce the
conservation value or functional habitat units of Atlantic salmon
habitat within those particular areas, given the ongoing cooperative
efforts between the Tribes and the agencies. The Penobscot Indian
Nation and the Passamaquoddy Tribe own lands within the range of the
GOM DPS and have actively pursued or participated in activities to
further promote the health and continued existence of Atlantic salmon
and their habitats. The Penobscot Indian Nation has developed and
maintained its own water quality standards that state ``it is the
official policy of the Penobscot Nation that all waters of the Tribe
shall be of sufficient quality to support the ancient and historical
traditional and customary uses of such tribal waters by members of the
Penobscot Nation.'' The Tribe is also currently participating in the
Penobscot River Restoration Project that has the intended goal of
restoring 11 species of diadromous fish, including
[[Page 39904]]
Atlantic salmon. The Passamaquoddy Tribe has continued to maintain
efforts to balance agricultural practices with natural resources. In a
tract of Tribal land in Township 19, which accounts for approximately
12 km of the 28 km of rivers and streams on Passamaquoddy land that
contain physical and biological features essential to salmon, the Tribe
has established an ordinance to govern its water withdrawals for these
lands. This ordinance states, ``it is important to the Tribe that its
water withdrawals at T. 19 do not adversely affect the Atlantic salmon
in any of its life stages, or its habitat,'' and restricts water
withdrawals to avoid adverse impact on the Atlantic salmon.
The benefits of excluding Tribal lands from critical habitat
include maintenance of a long-term working relationship between the
Tribes and government agencies that promotes environmental conservation
and Atlantic salmon conservation and the continued promotion of
established national policies, our Federal trust obligations, and our
deference to the Tribes in management of natural resources on their
lands.
Also, in Sec. 226.217(b)(2)(i) of the June 19, 2009, final rule
(74 FR 29300), we inadvertently left out the ``E'' in the table to
indicate that the Belfast Bay HUC 10 watershed was excluded from
critical habitat based on economic impacts. This final rule corrects
that omission.
Correction
In FR Doc. E9-14268 appearing on page 29300 in the Federal Register
of Friday, June 19, 2009, the following corrections are made:
On page 29330, under the heading Other Relevant Impacts: Tribal
Lands, third column, the first paragraph is corrected to read:
``Secretarial Order 3206 recognizes that Tribes have governmental
authority and the desire to protect and manage their resources in the
manner that is most beneficial to them. Pursuant to the Secretarial
Order, and consistent with the Federal government's trust
responsibilities, the Services must consult with the affected Indian
Tribes when considering the designation of critical habitat in areas
that may impact tribal trust resources, tribally-owned fee lands, or
the exercise of tribal rights.''
Classification
The determinations made by the agency in the Classification section
in the final rule published June 19, 2009 (74 FR 29300), with respect
to Executive Order 12866, the Coastal Zone Management Act, the
Regulatory Flexibility Act, the Information Quality Act, the Paperwork
Reduction Act, the National Environmental Policy Act, Federalism, and
Takings are unaltered by this correction.
The Assistant Administrator for Fisheries, NOAA (AA) finds good
cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the
opportunity for public comment because it is ``unnecessary''. Exclusion
of the Penobscot Nation's Trust and fee lands was part of the proposed
rule on which public comment was solicited. The only comment received
on this aspect of the proposed rule was from the Penobscot Nation. As
such, this correction is considered a minor rule regarding which the
public is not particularly interested. This correction actually
responds to a further comment from the Penobscot Nation which pointed
out that the agency had misinterpreted the intent of its comment on the
proposed rule.
The AA further finds pursuant to 5 U.S.C. 553(d)(3) good cause to
waive the thirty (30) day delayed effectiveness period because it
relieves a burden. Activities that are funded, authorized, or carried
out by a Federal agency, such as agriculture, development, and
transportation, on Tribal lands might be negatively impacted by the
designation. If the activity may affect critical habitat, then the
Federal agency would be required to consult with NMFS under ESA section
7 to ensure that the activity does not destroy or adversely modify
critical habitat. Implementing this correction as soon as possible
would remove this burden that might impact Federal activities on Tribal
lands.
List of Subjects in 50 CFR Part 226
Endangered and threatened species.
Dated: August 3, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
PART 226--DESIGNATED CRITICAL HABITAT
0
1. The authority citation for part 226 continues to read as follows:
Authority: 16 U.S.C. 1533.
0
2. In Sec. 226.217 paragraphs (b)(2)(i), (b)(4), and (b)(7)(ii) are
revised to read as follows:
Sec. 226.217 Critical habitat for the Gulf of Maine Distinct
Population Segment of Atlantic Salmon (Salmo salar).
* * * * *
(b) * * *
(2) * * *
(i) HUC 10 watersheds in the Penobscot Bay SHRU analyzed for
critical habitat, those that meet the criteria for critical habitat,
and those excluded under ESA section 4(b)(2):
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Economic
(E),
Military
Penobscot Bay SHRU HUC 10 Code HUC 10 Name Status (M), or
Tribal (T)
exclusions
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1 0102000101 North Branch Penobscot River .............. ...........
2 0102000102 Seeboomook Lak.............. ...........
3 0102000103 WEST Branch Penobscot River at Chesuncook Lak.............. ...........
4 0102000104 Caucomgomok Lak.............. ...........
5 0102000105 Chesuncook Lak.............. ...........
6 0102000106 Nesowadnehunk Stream .............. ...........
7 0102000107 Nahamakanta Stream .............. ...........
8 0102000108 Jo-Mary Lak.............. ...........
9 0102000109 West Branch Penobscot River (3) .............. ...........
10 0102000110 West Branch Penobscot River (4) .............. ...........
11 0102000201 Webster Brook .............. ...........
12 0102000202 Grand Lake MataCritical T
Habitat
13 0102000203 East Branch Penobscot River (2) Critical T
Habitat
14 0102000204 Seboeis River Critical T
Habitat
15 0102000205 East Branch Penobscot River (3) Critical T
Habitat
16 0102000301 West Branch Mattawamkeag River Critical T
Habitat
17 0102000302 East Branch Mattawamkeag River Critical ...........
Habitat
[[Page 39905]]
18 0102000303 Mattawamkeag River (1) Critical ...........
Habitat
19 0102000304 Baskahegan Stream .............. ...........
20 0102000305 Mattawamkeag River (2) Critical ...........
Habitat
21 0102000306 Molunkus Stream Critical E
Habitat
22 0102000307 Mattawamkeag River (3 Critical T
Habitat
23 0102000401 Piscataquis River (1) Critical ...........
Habitat
24 0102000402 Piscataquis River (3) Critical ...........
Habitat
25 0102000403 Sebec River .............. ...........
26 0102000404 Pleasant River Critical T
Habitat
27 0102000405 Seboeis Stream Critical T
Habitat
28 0102000406 Piscataquis River (4) Critical ``
Habitat
29 0102000501 Penobscot River (1) at Mattawamkeag Critical T
Habitat
30 0102000502 Penobscot River (2) at West Enfield Critical T
Habitat
31 0102000503 Passadumkeag River Critical E
Habitat
32 0102000505 Sunkhaze Stream Critical ...........
Habitat
33 0102000506 Penobscot River (3) at Orson Island Critical T
Habitat
34 0102000507 Birch Stream Critical T
Habitat
35 0102000508 Pushaw Stream .............. ...........
36 0102000509 Penobscot River (4) at Veazie Dam Critical ...........
Habitat
37 0102000510 Kenduskeag Stream Critical ...........
Habitat
38 0102000511 Souadabscook Stream Critical ...........
Habitat
39 0102000512 Marsh River Critical ...........
Habitat
40 0102000513 Penobscot River (6) Critical ...........
Habitat
92 0105000216 Bagaduce River .............. ...........
93 0105000217 Stonington Coastal .............. ...........
94 0105000218 Belfast Bay Critical E
Habitat
105 0105000219 Ducktrap River Critical ...........
Habitat
103 0102000504 Olamon Stream .............. ...........
95 0105000220 West Penobscot Bay Coastal .............. ...........
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* * * * *
(4) Habitat that meets the definition of critical habitat in
occupied habitat areas on Passamaquoddy Tribal Indian lands and Fee
lands or lands held in Trust by the Penobscot Indian Reservation within
the range of the GOM DPS are excluded from designation. Per request of
the Penobscot Tribe, critical habitat does include occupied habitat
that makes up the Penobscot Indian Reservation. The Indian lands
specifically excluded from critical habitat are those defined in the
Secretarial Order 3206, including:
(i) Lands held in Trust by the United States for the benefit of any
Indian Tribe;
(ii) Lands held in trust by the United States for the benefit of
any Indian Tribe or individual subject to restrictions by the United
States against alienation;
(iii) Fee lands, either within or outside the reservation
boundaries, owned by the tribal government; and
(iv) Fee lands within the reservation boundaries owned by
individual Indians.
The rivers, streams, lakes, and estuaries on approximately 9,500
acres (38.4 sq km) of lands held by the Passamaquoddy Tribe and
approximately 60,500 acres (244.8 sq km) of Fee lands and land held in
Trust for the Penobscot Tribe within the areas occupied by the GOM DPS
are excluded from critical habitat designation based on the principles
of the Secretarial Order discussed above. Per request of the Penobscot
Nation, the rivers, lakes, and streams within the approximately 4,400-
acre (17.8 sq km) Penobscot Reservation are included as critical
habitat.
* * * * *
(7) * * *
(ii) Penobscot Bay SHRU. Critical habitat area (in sq km), areas
excluded under ESA section 4(b)(2) (in sq km), and exclusion type, by
HUC 10 watershed:
[[Page 39906]]
[GRAPHIC] [TIFF OMITTED] TR10AU09.025
[[Page 39907]]
[GRAPHIC] [TIFF OMITTED] TR10AU09.026
* * * * *
[FR Doc. E9-19094 Filed 8-7-09; 8:45 am]
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