[Federal Register Volume 85, Number 246 (Tuesday, December 22, 2020)]
[Notices]
[Pages 83522-83523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28228]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XA721]


Endangered Species; File No. 23861

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; issuance of permit.

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SUMMARY: Notice is hereby given that NMFS has issued an Incidental Take 
Permit (ITP) (No. 23861) to Midwest Biodiversity Institute (MBI), 
pursuant to the Endangered Species Act (ESA) of 1973, as amended, for 
the incidental take of shortnose sturgeon (Acipenser brevirostrum), 
Gulf of Main Distinct population segment (GOM DPS) Atlantic sturgeon, 
or the New York Bight (NYB DPS) of Atlantic sturgeon. (A. oxyrinchus) 
and the GOM DPS Atlantic salmon (Salmo salar) associated with the 
otherwise lawful sampling of non-ESA listed fish in the Lower Kennebec 
River. The permit is issued for a duration of 10 years.

ADDRESSES: The incidental take permit, final environmental assessment, 
and other related documents are available on the NMFS Office of 
Protected Resources website at https://www.fisheries.noaa.gov/action/incidental-take-permit-midwest-biodiversity-institute.

FOR FURTHER INFORMATION CONTACT: Celeste Stout, phone: (301) 427-8436 
or email: [email protected].

SUPPLEMENTARY INFORMATION: Section 9 of the ESA and Federal regulations 
prohibit the `taking' of a species listed as endangered or threatened. 
The ESA defines ``take'' to mean harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. NMFS may issue permits, under limited circumstances to 
take listed species incidental to, and not the purpose of, otherwise 
lawful activities. Section 10(a)(1)(B) of the ESA provides for 
authorizing incidental take of listed species. NMFS regulations 
governing permits for threatened and endangered species are promulgated 
at 50 CFR 222.307.

Background

    NMFS received a permit application from MBI on January 31, 2020. 
Based on our initial review of the application and conservation plan, 
we requested further information and clarification. On March 30, 2020, 
MBI submitted a revised and complete application for the take of ESA-
listed shortnose sturgeon, Atlantic sturgeon and Atlantic salmon due to 
the sampling of non-ESA listed fish in the Lower Kennebec River. MBI 
proposes to continue an 18 yearlong (2002-19) systematic assessment of 
the fish assemblages at seven sites in an approximate 17.5 mile (28.2 
km) reach of the Lower Kennebec River and three sites in a 6 mile (9.7 
km) reach of the Sebasticook River. MBI will conduct boat 
electrofishing where electric current is generated by a Smith-Root 
Generator Powered Pulsator and transmitted into the water by an 
electrode array suspended from the bow of 16-18 foot long (25-29 km) 
jon boats or a 16 foot long inflatable Wing raft. NMFS determined that 
the application contained sufficient information for review and 
consideration under section 10(a)(1)(B) of the ESA. NMFS then provided 
an opportunity for public review of MBI's application and Conservation 
Plan. On April 17, 2020, NMFS published a notice of receipt (NOR) of 
the MBI application in the Federal Register (85 FR 21413). The comment 
period ended on May 18, 2020 and six comments were received. Two of 
these comments did not pertain to the notice and four were considered 
relevant. Two of these comments consisted of uploaded letters. The 
first was from the Maine Council of the Atlantic Salmon Federation and 
the Maine Council of Trout Unlimited and the second was from The Nature

[[Page 83523]]

Conservancy in Maine. In these letters these organizations expressed 
their support of MBI's application for an ITP. Of the two additional 
comments one commenter was opposed to the killing of any fish. This is 
not consistent with the ESA, which allows for the incidental take of 
listed species if certain criteria are met and a permit is issued by 
NMFS. Additionally, lethal take is not authorized for this permit. The 
other commenter seemed confused regarding the requirements of the ESA 
and the ITP process. NMFS and MBI held further discussions regarding 
information that would be incorporated in the Conservation Plan and a 
final application and Conservation Plan was submitted on July 6, 2020.

Conservation Plan

    Section 10 of the ESA specifies that no permit may be issued unless 
an applicant submits an adequate conservation plan. The conservation 
plan prepared by MBI describes measures designed to minimize and 
mitigate the impacts of any incidental take of ESA-listed shortnose 
sturgeon, Atlantic sturgeon and Atlantic salmon. To avoid and minimize 
take of ESA listed species MBI is required to implement the following 
minimization measures: (a) Conduct sampling between mid-September and 
mid-October to minimize any encounters with early life stage or 
juvenile fish. (b) MBI will request any recent acoustic detections of 
ESA listed species in the study area and take steps to avoid any 
congregations of listed species. (c) Only trained and qualified MBI 
crew leaders and either MBI or Maine Department of Marine Resources 
(DMR) agency technicians will be allowed to carry out the sampling 
activities. The MBI crew leader will review the ESA listed species 
minimization and avoidance procedures with the sampling crew at the 
beginning of each sampling day. In addition Maine DMR procedures 
(Bruchs et al. 2016) for electrofishing will be included in the 
training and instructions. (d) Sampling and the operation of the 
electrofishing gear will be done in a manner that minimizes the 
potential for injury to the listed species. The pulse frequency will be 
reduced to 30-60Hz when sampling in areas of prior interaction with ESA 
listed species to minimize the risk of injury. (e) Electric current and 
sampling activity will cease upon an encounter where a listed species 
is observed to be affected by the electric field. Affected sturgeon, if 
immobilized and/or in apparent distress, may be netted or otherwise 
handled in order to ascertain any injury and to revive if necessary, 
but the individual will not be removed from the water. Otherwise, 
affected fish that leave the electric field under their own power and 
appear to be uninjured will not be pursued and netted. In such cases, 
the species identification and estimation of length will be made 
visually. (f) Sampling will not be conducted when ambient water 
temperature is >22 [deg]C per Maine DMR specifications (Bruchs et al. 
2016). Temperature will be routinely measured at the start of each 
electrofishing site, but will be more frequently monitored (every 2 
hours) when temperatures are between 20-22 [deg]C. (g) When there is 
any interaction with a listed species all sampling activities will 
cease and the electric current will be shut off for a period of 5 
minutes and/or until the individual fish are released and determined to 
have departed the area. Notation will be made about the physical 
condition of the individual in terms of the reaction to the electric 
field and if it was able to leave the area under its own power. 
Photographs will be taken of each interaction to document occurrence 
and any evidence of injury.
    At present, the project is funded by MBI research and development 
funds, but MBI continues to seek external funding. This project has 
been ongoing for 18 years and is one of the longest running biological 
monitoring projects in New England and the only sustained effort that 
focuses on large river fish assemblages.

Permit 23861

    NMFS authorizes the following non-lethal incidental takes:
     Four (adult/subadult) Gulf of Maine & New York Bight DPS 
Atlantic sturgeon;
     Four (adult/subadult) Shortnose sturgeon; and
     Five (adult/subadult) Gulf of Maine DPS Atlantic salmon.

National Environmental Policy Act

    Issuing an ESA section 10(a)(1)(B) permit constitutes a Federal 
action requiring NMFS to comply with the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) as implemented by 40 CFR parts 1500-
1508 and NOAA Administrative Order 216-6, Environmental Review 
Procedures for Implementing the National Policy Act (1999). NMFS has 
determined that the activity proposed is categorically excluded from 
the requirement to prepare an environmental assessment or environmental 
impact statement. This action falls within the B3 category--Issuance 
of, and amendments to, ``low effect'' Incidental Take Permits and their 
supporting ``low effect'' Habitat Conservation Plans under section 
10(a)(1)(B) of the ESA. Additionally there are no extraordinary 
circumstances with the potential for significant environmental effects 
that would preclude the issuance of this permit type from being 
categorically excluded.

    Dated: December 17, 2020.
Angela Somma,
Chief, Endangered Species Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service.
[FR Doc. 2020-28228 Filed 12-21-20; 8:45 am]
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