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Home , Bagaduce River, Kenduskeag Stream, Marsh River (Maine), Molunkus Stream, Sebec River, Seboeis River

Federal Register / Vol. 74, No. 152 / Monday, August 10, 2009 / Rules and Regulations 39903

addressed to ‘‘Request for Waiver of excluded from critical habitat under the The exclusion of the Trust and Fee Special Handling Fee, Office of the ESA for reasons of economics. lands from the designation of critical General Counsel, U.S. Copyright Office, DATES: Effective August 10, 2009. habitat does not diminish the number of Copyright GC/I&R, P.O. Box 70400, FOR FURTHER INFORMATION CONTACT: Dan functional habitat units below those Washington, DC 20024,’’ and deposited Kircheis, National Marine Fisheries needed for the recovery of the species in with the United States Postal Service. Service, Field Station, 17 Godfrey the salmon habitat Dated: July 29, 2009. Drive, Orono, ME 04473 at (207) 866– recovery unit. The effect of this correction is to Marybeth Peters, 7320, or Marta Nammack at (301) 713– 1401 ext. 180. exclude 1,400 instead of 1,256 km of Register of Copyrights. river, stream, and estuary habitat and SUPPLEMENTARY INFORMATION: In the Approved by: 127 instead of 100 sq km of lake habitat proposed rule to designate critical James H. Billington, from critical habitat pursuant to section habitat for the expanded GOM DPS of The Librarian of Congress. 4(b)(2) of the ESA. Atlantic salmon (73 FR 51747; Recent information provided by the [FR Doc. E9–19101 Filed 8–7–09; 8:45 am] September 5, 2008), we proposed to BILLING CODE 1410–33–S Penobscot on Tribal ownership of lands exclude under section 4(b)(2) of the ESA within the occupied range designated as all tribal lands from the critical habitat critical habitat discloses that the designation, based on Secretarial Order DEPARTMENT OF COMMERCE Penobscot Tribe hold approximately 3206 that recognizes Tribes as having 60,500 acres (244.8 sq km) of Fee lands the governmental authority and the National Oceanic and Atmospheric and lands held in Trust within the areas desire to protect and manage their Administration occupied by GOM DPS. We have resources in a manner that is most determined that all the rivers, streams, beneficial to them. 50 CFR Part 226 lakes, and estuaries of approximately In the final rule to designate critical 9,500 acres (38.4 sq km) of land held for [Docket No. 0808061060–91139–03] habitat for the expanded GOM DPS of the Passamaquoddy tribe already Atlantic salmon (74 FR 29300; June 19, RIN 0648–AW77 disclosed in the final rule and 2009), we included as critical habitat approximately 60,500 acres (244.8 sq Endangered and Threatened Species; Trust and Fee lands owned by the km) of Fee lands and lands held in Trust Designation of Critical Habitat for Penobscot Indian Nation, based on our by the Penobscot Nation (not disclosed Atlantic Salmon (Salmo salar) Gulf of interpretation of comments that we in the final rule) within the areas Maine Distinct Population Segment; received from the Penobscot Indian occupied by the GOM DPS are excluded Final Rule Nation. In their comments, the from critical habitat designation based Penobscot Indian Nation stated that ‘‘the on the principles of the Secretarial AGENCY: National Marine Fisheries Nations Trust landholdings are Order discussed above. The rivers, Service (NMFS), National Oceanic and adequately identified and appropriately lakes, and streams within the Atmospheric Administration, excluded from Critical Habitat approximately 4,400–acre (17.8 sq km) Commerce. Designation.’’ Then they stated, ‘‘Given Penobscot Reservation are included as ACTION: Final rule. the extent of important salmon habitat critical habitat per request of the located within the Penobscot Indian Penobscot Nation. SUMMARY: We, the National Marine Reservation the Penobscot Nation asks We do not believe that exclusion of Fisheries Service (NMFS), issue a final that the services do not exclude any Penobscot Tribal Trust lands and rule to revise the regulatory language portion of the Penobscot Indian Passamaquoddy tribal lands, including that appeared in a final rule that Reservation from the designation as their lands in the Downeast Coastal published in the Federal Register of Critical Habitat. The bed, banks, and Salmon Habitat Recovery Unit (SHRU), June 19, 2009. The final rule designated islands that make up the Penobscot will reduce the conservation value or critical habitat for the Atlantic salmon Indian Reservation are indeed ‘‘critical’’ functional habitat units of Atlantic (USalmo salar) Distinct to the survival of wild Atlantic salmon salmon habitat within those particular Population Segment (GOM DPS) under in the watershed. In areas, given the ongoing cooperative the Endangered Species Act (ESA). We fact, the Penobscot Nation believes that efforts between the Tribes and the designated as critical habitat 45 specific the recovery of the species will not be agencies. The Penobscot Indian Nation areas occupied by Atlantic salmon at the possible without adequate access to the and the Passamaquoddy Tribe own time of listing that comprise Atlantic salmon habitat that is lands within the range of the GOM DPS approximately 19,571 km of perennial contained within the Penobscot Indian and have actively pursued or river, stream, and estuary habitat and Reservation.’’ We interpreted this to participated in activities to further 799 square km of lake habitat within the mean that all of the Penobscot Indian promote the health and continued range of the GOM DPS and in which are Nation’s land should be included as existence of Atlantic salmon and their found those physical and biological critical habitat. habitats. The Penobscot Indian Nation features essential to the conservation of On June 22, 2009, we received notice has developed and maintained its own the species. We excluded approximately from the Tribe that we incorrectly water quality standards that state ‘‘it is 1,256 km of river, stream, and estuary included Trust and Fee lands as critical the official policy of the Penobscot habitat and 100 square km of lake habitat when they were seeking to Nation that all waters of the Tribe shall habitat from critical habitat pursuant to include reservation lands. This final be of sufficient quality to support the the ESA. We issue this final rule to rule corrects the final rule published on ancient and historical traditional and revise the designated critical habitat for June 19, 2009 (74 FR 29300) to exclude customary uses of such tribal waters by the expanded GOM DPS of Atlantic all areas that are Trust and Fee lands of members of the Penobscot Nation.’’ The salmon to exclude all trust and fee the Penobscot Indian Nation. Critical Tribe is also currently participating in holdings of the Penobscot Indian habitat on Penobscot Indian lands will the Penobscot River Restoration Project Nation, and we correct the table to add remain designated only for those lands that has the intended goal of restoring an ‘‘E’’ to indicate that Belfast Bay is that make up the Penobscot Reservation. 11 species of diadromous fish, including

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Atlantic salmon. The Passamaquoddy 3206 recognizes that Tribes have thirty (30) day delayed effectiveness Tribe has continued to maintain efforts governmental authority and the desire period because it relieves a burden. to balance agricultural practices with to protect and manage their resources in Activities that are funded, authorized, natural resources. In a tract of Tribal the manner that is most beneficial to or carried out by a Federal agency, such land in Township 19, which accounts them. Pursuant to the Secretarial Order, as agriculture, development, and for approximately 12 km of the 28 km and consistent with the Federal transportation, on Tribal lands might be of rivers and streams on Passamaquoddy government’s trust responsibilities, the negatively impacted by the designation. land that contain physical and Services must consult with the affected If the activity may affect critical habitat, biological features essential to salmon, Indian Tribes when considering the then the Federal agency would be the Tribe has established an ordinance designation of critical habitat in areas required to consult with NMFS under to govern its water withdrawals for that may impact tribal trust resources, ESA section 7 to ensure that the activity these lands. This ordinance states, ‘‘it is tribally-owned fee lands, or the exercise does not destroy or adversely modify important to the Tribe that its water of tribal rights.’’ critical habitat. Implementing this withdrawals at T. 19 do not adversely Classification correction as soon as possible would affect the Atlantic salmon in any of its remove this burden that might impact life stages, or its habitat,’’ and restricts The determinations made by the Federal activities on Tribal lands. water withdrawals to avoid adverse agency in the Classification section in impact on the Atlantic salmon. the final rule published June 19, 2009 List of Subjects in 50 CFR Part 226 (74 FR 29300), with respect to Executive The benefits of excluding Tribal lands Endangered and threatened species. from critical habitat include Order 12866, the Coastal Zone maintenance of a long-term working Management Act, the Regulatory Dated: August 3, 2009. relationship between the Tribes and Flexibility Act, the Information Quality Samuel D. Rauch III, government agencies that promotes Act, the Paperwork Reduction Act, the Deputy Assistant Administrator for environmental conservation and National Environmental Policy Act, Regulatory Programs, National Marine Atlantic salmon conservation and the Federalism, and Takings are unaltered Fisheries Service. continued promotion of established by this correction. PART 226—DESIGNATED CRITICAL national policies, our Federal trust The Assistant Administrator for HABITAT obligations, and our deference to the Fisheries, NOAA (AA) finds good cause Tribes in management of natural pursuant to 5 U.S.C. 553(b)(B) to waive ■ resources on their lands. prior notice and the opportunity for 1. The authority citation for part 226 Also, in § 226.217(b)(2)(i) of the June public comment because it is continues to read as follows: 19, 2009, final rule (74 FR 29300), we ‘‘unnecessary’’. Exclusion of the Authority: 16 U.S.C. 1533. Penobscot Nation’s Trust and fee lands inadvertently left out the ‘‘E’’ in the ■ 2. In § 226.217 paragraphs (b)(2)(i), table to indicate that the Belfast Bay was part of the proposed rule on which public comment was solicited. The only (b)(4), and (b)(7)(ii) are revised to read HUC 10 watershed was excluded from as follows: critical habitat based on economic comment received on this aspect of the impacts. This final rule corrects that proposed rule was from the Penobscot § 226.217 Critical habitat for the Gulf of omission. Nation. As such, this correction is Maine Distinct Population Segment of considered a minor rule regarding Atlantic Salmon (Salmo salar). Correction which the public is not particularly * * * * * In FR Doc. E9–14268 appearing on interested. This correction actually (b) * * * page 29300 in the Federal Register of responds to a further comment from the Friday, June 19, 2009, the following Penobscot Nation which pointed out (2) * * * corrections are made: that the agency had misinterpreted the (i) HUC 10 watersheds in the On page 29330, under the heading intent of its comment on the proposed Penobscot Bay SHRU analyzed for Other Relevant Impacts: Tribal Lands, rule. critical habitat, those that meet the third column, the first paragraph is The AA further finds pursuant to 5 criteria for critical habitat, and those corrected to read: ‘‘Secretarial Order U.S.C. 553(d)(3) good cause to waive the excluded under ESA section 4(b)(2):

Economic (E), Military Penobscot Bay SHRU HUC 10 HUC 10 Name Status (M), or Code Tribal (T) exclusions

1 0102000101 North Branch Penobscot River ...... 2 0102000102 Seeboomook Lake...... 3 0102000103 WEST Branch Penobscot River at ..... 4 0102000104 Caucomgomok Lake...... 5 0102000105 Chesuncook Lake...... 6 0102000106 Nesowadnehunk Stream...... 7 0102000107 Nahamakanta Stream...... 8 0102000108 Jo-Mary Lake...... 9 0102000109 West Branch Penobscot River (3) ...... 10 0102000110 West Branch Penobscot River (4) ...... 11 0102000201 Webster Brook...... 12 0102000202 Grand Lake Matagamon ...... Critical Habitat T 13 0102000203 East Branch Penobscot River (2) ...... Critical Habitat T 14 0102000204 ...... Critical Habitat T 15 0102000205 East Branch Penobscot River (3) ...... Critical Habitat T 16 0102000301 West Branch ...... Critical Habitat T 17 0102000302 East Branch Mattawamkeag River ...... Critical Habitat

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Economic (E), Military Penobscot Bay SHRU HUC 10 HUC 10 Name Status (M), or Code Tribal (T) exclusions

18 0102000303 Mattawamkeag River (1) ...... Critical Habitat 19 0102000304 Baskahegan Stream...... 20 0102000305 Mattawamkeag River (2) ...... Critical Habitat 21 0102000306 ...... Critical Habitat E 22 0102000307 Mattawamkeag River (3 ...... Critical Habitat T 23 0102000401 (1) ...... Critical Habitat 24 0102000402 Piscataquis River (3) ...... Critical Habitat 25 0102000403 ...... 26 0102000404 Pleasant River ...... Critical Habitat T 27 0102000405 Seboeis Stream ...... Critical Habitat T 28 0102000406 Piscataquis River (4) ...... Critical Habitat ‘‘ 29 0102000501 Penobscot River (1) at Mattawamkeag ...... Critical Habitat T 30 0102000502 Penobscot River (2) at West Enfield ...... Critical Habitat T 31 0102000503 ...... Critical Habitat E 32 0102000505 Sunkhaze Stream ...... Critical Habitat 33 0102000506 Penobscot River (3) at Orson Island ...... Critical Habitat T 34 0102000507 Birch Stream ...... Critical Habitat T 35 0102000508 Pushaw Stream...... 36 0102000509 Penobscot River (4) at ...... Critical Habitat 37 0102000510 ...... Critical Habitat 38 0102000511 Souadabscook Stream ...... Critical Habitat 39 0102000512 ...... Critical Habitat 40 0102000513 Penobscot River (6) ...... Critical Habitat 92 0105000216 ...... 93 0105000217 Stonington Coastal...... 94 0105000218 Belfast Bay ...... Critical Habitat E 105 0105000219 ...... Critical Habitat 103 0102000504 Olamon Stream...... 95 0105000220 West Penobscot Bay Coastal ......

* * * * * for the Penobscot Tribe within the areas (4) Habitat that meets the definition of (ii) Lands held in trust by the United occupied by the GOM DPS are excluded critical habitat in occupied habitat areas States for the benefit of any Indian Tribe from critical habitat designation based on Passamaquoddy Tribal Indian lands or individual subject to restrictions by on the principles of the Secretarial and Fee lands or lands held in Trust by the United States against alienation; Order discussed above. Per request of the Penobscot Indian Reservation within (iii) Fee lands, either within or the Penobscot Nation, the rivers, lakes, the range of the GOM DPS are excluded outside the reservation boundaries, and streams within the approximately from designation. Per request of the owned by the tribal government; and 4,400–acre (17.8 sq km) Penobscot Penobscot Tribe, critical habitat does (iv) Fee lands within the reservation Reservation are included as critical include occupied habitat that makes up boundaries owned by individual habitat. the Penobscot Indian Reservation. The Indians. * * * * * Indian lands specifically excluded from The rivers, streams, lakes, and (7) * * * critical habitat are those defined in the estuaries on approximately 9,500 acres (ii) Penobscot Bay SHRU. Critical Secretarial Order 3206, including: (38.4 sq km) of lands held by the habitat area (in sq km), areas excluded (i) Lands held in Trust by the United Passamaquoddy Tribe and under ESA section 4(b)(2) (in sq km), States for the benefit of any Indian approximately 60,500 acres (244.8 sq and exclusion type, by HUC 10 Tribe; km) of Fee lands and land held in Trust watershed:

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* * * * * [FR Doc. E9–19094 Filed 8–7–09; 8:45 am] BILLING CODE 3510–22–S

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