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Department of Commerce National Oceanic and Atmospheric Administration Friday, October 9, 2009 Part II Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 226 Endangered and Threatened Wildlife and Plants: Final Rulemaking To Designate Critical Habitat for the Threatened Southern Distinct Population Segment of North American Green Sturgeon; Final Rule VerDate Nov<24>2008 16:06 Oct 08, 2009 Jkt 222001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09OCR2.SGM 09OCR2 mstockstill on DSKH9S0YB1PROD with RULES2 52300 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations DEPARTMENT OF COMMERCE northwest to the Bering Strait; the lower DPS by June 30, 2009. However, an Columbia River from river kilometer extension was requested and granted, National Oceanic and Atmospheric (RKM) 74 to the Bonneville Dam; and with a new deadline of October 1, 2009. Administration certain coastal bays and estuaries in This rule describes the final critical California (Elkhorn Slough, Tomales habitat designation, including responses 50 CFR Part 226 Bay, Noyo Harbor, and the estuaries to to public comments and peer reviewer [Docket No. 080730953–91263–02] the head of the tide in the Eel and comments, a summary of changes from Klamath/Trinity rivers), Oregon the proposed rule, and supporting RIN 0648–AX04 (Tillamook Bay and the estuaries to the information on green sturgeon biology, head of the tide in the Rogue, Siuslaw, distribution, and habitat use, and the Endangered and Threatened Wildlife and Alsea rivers), and Washington methods used to develop the final and Plants: Final Rulemaking To (Puget Sound). Particular areas are also designation. Designate Critical Habitat for the excluded based on impacts on national We considered various alternatives to Threatened Southern Distinct security and impacts on Indian lands. the critical habitat designation for the Population Segment of North American The areas excluded from the designation green sturgeon. The alternative of not Green Sturgeon comprise approximately 0.2 km (0.1 mi) designating critical habitat for the green 2 sturgeon would impose no economic, AGENCY: National Marine Fisheries of freshwater habitat, 2,945 km (1,137 2 national security, or other relevant Service (NMFS), National Oceanic and mi ) of estuarine habitat and 1,034,935 2 2 impacts, but would not provide any Atmospheric Administration (NOAA), km (399,590 mi ) of marine habitat. conservation benefit to the species. This Commerce. This final rule responds to and incorporates public comments received alternative was considered and rejected ACTION: Final rule. on the proposed rule and supporting because such an approach does not meet the legal requirements of the ESA and SUMMARY: We, the National Marine documents, as well as peer reviewer would not provide for the conservation Fisheries Service (NMFS), designate comments received on the draft of green sturgeon. The alternative of critical habitat for the threatened biological report and draft ESA section designating all potential critical habitat Southern distinct population segment of 4(b)(2) report. areas (i.e., no areas excluded) also was North American green sturgeon DATES: This rule will take effect on November 9, 2009. considered and rejected because, for a (Southern DPS of green sturgeon) number of areas, the economic benefits ADDRESSES: Reference materials pursuant to section 4 of the Endangered of exclusion outweighed the benefits of regarding this determination can be Species Act (ESA). Specific areas inclusion, and NMFS did not determine obtained via the Internet at: http:// proposed for designation include: that exclusion of these areas would Coastal U.S. marine waters within 60 www.nmfs.noaa.gov or by submitting a significantly impede conservation of the fathoms (fm) depth from Monterey Bay, request to the Assistant Regional species or result in extinction of the California (including Monterey Bay), Administrator, Protected Resources species. The total estimated annualized north to Cape Flattery, Washington, Division, Southwest Region, NMFS, 501 economic impact associated with the including the Strait of Juan de Fuca, West Ocean Blvd., Suite 4200, Long designation of all potential critical Washington, to its United States Beach, CA 90802–4213. habitat areas would be $64 million to boundary; the Sacramento River, lower FOR FURTHER INFORMATION CONTACT: $578 million (discounted at 7 percent) Feather River, and lower Yuba River in Melissa Neuman, NMFS, Southwest or $63.9 million to $578 million California; the Sacramento-San Joaquin Region (562) 980–4115; Steve Stone, (discounted at 3 percent). Delta and Suisun, San Pablo, and San NMFS, Northwest Region (503) 231– An alternative to designating critical Francisco bays in California; the lower 2317; or Lisa Manning, NMFS, Office of habitat within all of the units Columbia River estuary; and certain Protected Resources (301) 713–1401. considered for designation is the coastal bays and estuaries in California SUPPLEMENTARY INFORMATION: designation of critical habitat within a (Humboldt Bay), Oregon (Coos Bay, subset of these units. Under section Background Winchester Bay, Yaquina Bay, and 4(b)(2) of the ESA, NMFS must consider Nehalem Bay), and Washington Under the ESA, we are responsible for the economic impacts, impacts to (Willapa Bay and Grays Harbor). This determining whether certain species, national security, and other relevant rule designates approximately 515 subspecies, or distinct population impacts of designating any particular kilometer (km) (320 miles (mi)) of segments (DPS) are threatened or area as critical habitat. NMFS has the freshwater river habitat, 2,323 km2 (897 endangered, and designating critical discretion to exclude an area from mi2) of estuarine habitat, 29,581 km2 habitat for them (16 U.S.C. 1533). On designation as critical habitat if the (11,421 mi2) of marine habitat, 784 km April 7, 2006, we determined that the benefits of exclusion (i.e., the impacts (487 mi) of habitat in the Sacramento- Southern DPS of green sturgeon is likely that would be avoided if an area were San Joaquin Delta, and 350 km2 (135 to become endangered in the foreseeable excluded from the designation) mi2) of habitat within the Yolo and future throughout all or a significant outweigh the benefits of designation Sutter bypasses (Sacramento River, CA) portion of its range and listed the (i.e., the conservation benefits to the as critical habitat for the Southern DPS species as threatened under the ESA (71 Southern DPS if an area were of green sturgeon. FR 17757). A proposed critical habitat designated), so long as exclusion of the This rule excludes the following areas rule for the Southern DPS was area will not result in extinction of the from designation because the economic published in the Federal Register on species. Exclusion under section 4(b)(2) benefits of exclusion outweigh the September 8, 2008 (73 FR 52084), with of the ESA of one or more of the units benefits of inclusion and exclusion will a technical correction and notification considered for designation would not result in the extinction of the of a public workshop published on reduce the total impacts of designation. species: Coastal U.S. marine waters October 7, 2008 (73 FR 58527). Pursuant The determination of which units and within 60 fm depth from the California/ to a court-ordered settlement agreement, how many to exclude depends on Mexico border north to Monterey Bay, NMFS agreed to make a final critical NMFS’ ESA 4(b)(2) analysis, which is CA, and from the Alaska/Canada border habitat designation for the Southern conducted for each unit and described VerDate Nov<24>2008 16:06 Oct 08, 2009 Jkt 222001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\09OCR2.SGM 09OCR2 mstockstill on DSKH9S0YB1PROD with RULES2 Federal Register / Vol. 74, No. 195 / Friday, October 9, 2009 / Rules and Regulations 52301 in detail in the ESA 4(b)(2) analysis The Northern DPS and Southern DPS NMFS, and Mary Moser, NMFS, cited in report. Under this preferred alternative, are distinguished based on genetic data 70 FR 17386, April 6, 2005; Erickson NMFS originally proposed to exclude 13 and spawning locations, but their and Webb 2007). Prior to reaching out of 40 units considered. The total distribution outside of natal waters sexual maturity and between spawning estimated economic impact associated generally overlap with one another years, subadults and adults occupy with the proposed rule was $22.5 (Chadwick 1959; Miller 1972; California coastal estuaries adjacent to their natal million to $76.4 million (discounted at Department of Fish and Game (CDFG) rivers, as well as throughout the West 7 percent) or $22.5 million to $76.3 2002; Israel et al. 2004; Moser and coast, and coastal marine waters within million (discounted at 3 percent). In Lindley 2007; Erickson and Hightower 110 meters (m) depth. Green sturgeon response to public comments and 2007; Lindley et al. 2008.). Both inhabit certain estuaries on the northern additional information received, this Northern DPS and Southern DPS green California, Oregon, and Washington final rule excludes 14 units out of 41 sturgeon occupy coastal estuaries and coasts during the summer, and inhabit units considered where the economic coastal marine waters from southern coastal marine waters along the central benefits of exclusion outweighed the California to Alaska, including California coast and between Vancouver conservation benefits of designation. Humboldt Bay, the lower Columbia Island, British Columbia, and southeast NMFS determined that the
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