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Federal Register/Vol. 82, No. 158/Thursday, August 17, 2017 39160 Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Rules and Regulations DEPARTMENT OF COMMERCE miles) of aquatic habitat in the following published on June 3, 2016. The rivers of North Carolina and South proposed designations can be found at National Oceanic and Atmospheric Carolina: Roanoke, Tar-Pamlico, Neuse, 81 FR 35701 for the Gulf of Maine, New Administration Cape Fear, Northeast Cape Fear, York Bight, and Chesapeake Bay DPSs Waccamaw, Pee Dee, Black, Santee, of Atlantic sturgeon and at 81 FR 36077 50 CFR Part 226 North Santee, South Santee, and for the Carolina and South Atlantic [Docket No. 150818735–7452–02] Cooper, and the following other water DPSs of Atlantic sturgeon. A subsequent body: Bull Creek. Specific occupied correction notice clarifying the types of RIN 0648–BF28 areas designated as critical habitat for manmade structures not included in the the South Atlantic DPS of Atlantic proposed designation for the Carolina Endangered and Threatened Species; sturgeon contain approximately 2,883 and South Atlantic DPSs was published Designation of Critical Habitat for the km (1,791 miles) of aquatic habitat in on June 28, 2016 (81 FR 41926). On Endangered New York Bight, the following rivers of South Carolina, February 11, 2016, NMFS and the Chesapeake Bay, Carolina and South Georgia, and Florida: Edisto, Combahee- USFWS published a final rule, Atlantic Distinct Population Segments Salkehatchie, Savannah, Ogeechee, Implementing Changes to the of Atlantic Sturgeon and the Altamaha, Ocmulgee, Oconee, Satilla, Regulations for Designating Critical Threatened Gulf of Maine Distinct and St. Marys Rivers. Habitat (81 FR 7414) (the Population Segment of Atlantic DATES: This rule becomes effective Implementation rule). As the Sturgeon September 18, 2017. Implementation rule discussed, the changes to these regulations were meant AGENCY: National Marine Fisheries ADDRESSES: The final rule, maps, Final to more clearly describe the Services’ Service (NMFS), National Oceanic and Impacts Analysis Reports and Final past and ongoing practices for Atmospheric Administration (NOAA), Regulatory Flexibility Analyses used in designating critical habitat. The Commerce. preparation of this final rule are proposed rules designating critical ACTION: Final rule. available on the NMFS Greater Atlantic Regional Fisheries Office (GARFO) Web habitat for Atlantic sturgeon were largely drafted at the time the final SUMMARY: We (NMFS) are issuing this site at http://www.greateratlantic. Implementation rule was published, and final rule to designate critical habitat for fisheries.noaa.gov/, and NMFS were based on past practices the threatened Gulf of Maine distinct Southeast Regional Fisheries Office incorporated into that rule. Thus, no population segment (DPS) of Atlantic (SERO) Web site at http:// substantive changes were made to the sturgeon, the endangered New York sero.nmfs.noaa.gov/, or by contacting Atlantic sturgeon proposed rules as a Bight DPS of Atlantic sturgeon, the Lynn Lankshear, NMFS, GARFO, 55 result of finalizing the Implementation endangered Chesapeake Bay DPS of Great Republic Drive, Gloucester, MA rule. Atlantic sturgeon, the endangered 01930 or Andrew Herndon, NMFS, We solicited comments from the Carolina DPS of Atlantic sturgeon and SERO, 263 13th Avenue South, Saint public on all aspects of the proposed the endangered South Atlantic DPS of Petersburg, FL 33701. rules and held public hearings in Atlantic sturgeon pursuant to the FOR FURTHER INFORMATION CONTACT: Gloucester, Massachusetts; Brunswick, Endangered Species Act (ESA). Specific Lynn Lankshear, NMFS, GARFO at the Georgia; Charleston, South Carolina; occupied areas designated as critical address above or at 978–282–8473; and Morehead City, North Carolina. The habitat for the Gulf of Maine DPS of Andrew Herndon, NMFS, SERO at the initial regulatory flexibility analysis Atlantic sturgeon contain approximately address above or at 727–824–5312; or (IRFA) and the draft Impacts Analysis 244 kilometers (km; 152 miles) of Marta Nammack, NMFS, Office of (DIA) prepared for each proposed rule aquatic habitat in the following rivers of Protected Resources at 301–427–8469. pursuant to section 4(b)(2) of the ESA Maine, New Hampshire, and SUPPLEMENTARY INFORMATION: were made available for public review Massachusetts: Penobscot, Kennebec, Background and comment along with the proposed Androscoggin, Piscataqua, Cocheco, rules. Upon request, we re-opened the Salmon Falls, and Merrimack. Specific In 2012, we listed five DPSs of public comment period of both occupied areas designated as critical Atlantic sturgeon under the ESA: Four proposed rules for an additional 15 habitat for the New York Bight DPS of were listed as endangered (New York days, from September 29, 2016, to Atlantic sturgeon contain approximately Bight DPS and Chesapeake Bay DPS; 77 October 14, 2016 (81 FR 66911; Sept. 29, 547 km (340 miles) of aquatic habitat in FR 5880; February 6, 2012; Carolina 2016); the entire public comment period the following rivers of Connecticut, DPS and South Atlantic DPS; 77 FR totaled 105 days. After receiving public Massachusetts, New York, New Jersey, 5914; February 6, 2012) and one as comment, we decided to complete the Pennsylvania, and Delaware: threatened (Gulf of Maine DPS; 77 FR critical habitat designations with one Connecticut, Housatonic, Hudson, and 5880; February 6, 2012). On March 18, final rule. Combining the designations Delaware. Specific occupied areas 2014, two non-governmental into a single final rule will provide designated as critical habitat for the organizations filed a lawsuit alleging we greater clarity to the public about the Chesapeake Bay DPS of Atlantic had violated the ESA by failing to issue total extent of the Atlantic sturgeon sturgeon contain approximately 773 km proposed and final rules designating critical habitat designations, reduce (480 miles) of aquatic habitat in the critical habitat for the Atlantic sturgeon redundancy, and enable the public to following rivers of Maryland, Virginia, DPSs. Pursuant to a court-ordered better understand the need to designate and the District of Columbia: Potomac, settlement agreement, as modified, we the affected areas. Rappahannock, York, Pamunkey, agreed to submit proposed rules Final regulatory flexibility analyses Mattaponi, James, Nanticoke, and the designating critical habitat for all DPSs (FRFAs) and final Impacts Analysis following other water body: of Atlantic sturgeon to the Office of the reports (IAs) updating the initial Marshyhope Creek. Specific occupied Federal Register by May 30, 2016. analyses and reports, that were areas designated as critical habitat for NMFS met that deadline and the two published with the proposed rules, have the Carolina DPS of Atlantic sturgeon proposed critical habitat rules for the been prepared to accompany this final contain approximately 1,939 km (1,205 five Atlantic sturgeon DPSs were rule. Combining the regional FRFAs and VerDate Sep<11>2014 19:48 Aug 16, 2017 Jkt 241001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\17AUR2.SGM 17AUR2 sradovich on DSK3GMQ082PROD with RULES2 Federal Register / Vol. 82, No. 158 / Thursday, August 17, 2017 / Rules and Regulations 39161 IAs into single documents would make (3) Water of appropriate depth and (i) Unimpeded movement of adults to it difficult for the public to keep track absent physical barriers to passage (e.g., and from spawning sites; of which parts of the single documents locks, dams, thermal plumes, turbidity, (ii) Seasonal and physiologically- built upon the underlying data from the sound, reservoirs, gear, etc.) between the dependent movement of juvenile individual analyses published with the river mouth and spawning sites Atlantic sturgeon to appropriate salinity proposed rules. In addition, at the necessary to support: zones within the river estuary; and proposed rule stage, our two NMFS (i) Unimpeded movement of adults to (iii) Staging, resting, or holding of regions used different methodologies to and from spawning sites; subadults or spawning condition adults. evaluate impacts, relying on (ii) Seasonal and physiologically Water depths in main river channels consultation databases that are region dependent movement of juvenile must also be deep enough (at least 1.2 specific to address the different Atlantic sturgeon to appropriate salinity m) to ensure continuous flow in the circumstances applicable to a specific zones within the river estuary; and main channel at all times when any region. Courts have noted the ESA (iii) Staging, resting, or holding of sturgeon life stage would be in the river. provides the USFWS and NMFS (the subadults or spawning condition adults. (4) Water quality conditions, Services) with broad discretion and Water depths in main river channels especially in the bottom meter of the flexibility in determining which must also be deep enough (e.g., at least water column, between the river mouths particular methodologies or approaches 1.2 m) to ensure continuous flow in the and spawning sites with temperature are best for each specific set of main channel at all times when any and oxygen values that support: circumstances (See, e.g., Bldg. Indus. (i) Spawning; sturgeon life stage would be in the river. (ii) Annual and inter-annual adult, Ass’n of the Bay Area et al. v. U.S. (4) Water, between the river mouth Dep’t. of Commerce et al., No. 13– subadult, larval, and juvenile survival; and spawning sites, especially in the and 15132, 9th Cir., July 7, 2015 (upholding bottom
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