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.

Species Covered in This Notice

The following species are included in the conservation plan and permit application: Atlantic salmon ( Salmo salar)—Gulf of Maine DPS, Atlantic sturgeon ( Acipenser oxyrinchus oxyrinchus)—Gulf of Maine DPS and New York Bight DPS, and shortnose sturgeon ( Acipenser brevirostrum).

Background

MBI has conducted annual fish assemblage sampling in the Lower Kennebec River since 2002 and the Lower Sebasticook River since 2008 under ESA coverage initially provided through section 7 incidental take statements and, since December 15, 2020, through ESA section 10 Incidental Take Permit (ITP) No. 23861. The permit authorized incidental take of ESA-listed shortnose sturgeon, Atlantic sturgeon, and Atlantic salmon associated with electrofishing surveys targeting non ESA-listed fish species in the Kennebec River drainage. On September 9, 2022, NMFS modified the ITP to expand the study area into the Middle Kennebec River to support collection of baseline fisheries data associated with anticipated dam removal and fish passage restoration activities. MBI now requests a modification to the existing ITP to increase the annual incidental take limits for shortnose sturgeon and Atlantic salmon based on increased encounters during ongoing monitoring, expanded study area coverage, and increased occurrence of juvenile and adult Atlantic salmon in the Kennebec River system. Specifically, MBI requests an increase in the annual authorized take limit for shortnose sturgeon by two, adult Atlantic salmon by one, and is requesting take of 10 juvenile Atlantic salmon annually. MBI requests that the take for the remainder of the permit duration be in 2-year rolling takes. MBI proposes to continue long-term electrofishing surveys to assess fish assemblage health and monitor resident and diadromous fish populations in the Kennebec River drainage.

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 incidental take of ESA-listed shortnose sturgeon, Atlantic sturgeon, and Atlantic salmon associated with electrofishing surveys conducted in the Kennebec River drainage. MBI proposes to continue implementing measures to avoid and minimize take, including: (1) limiting sampling to mid-September through mid-October to reduce the likelihood of encounters with early life stages and periods of peak species presence; (2) coordinating with NOAA and Maine Department of Marine Resources (DMR) prior to sampling activities regarding recent detections and stocking locations of ESA-listed species; (3) ensuring all personnel are trained in electrofishing procedures, listed species identification, and species handling protocols; and (4) operating electrofishing equipment in a manner that minimizes injury or mortality, including reducing pulse frequency in areas with prior listed species encounters, suspending electrofishing immediately upon observation of a listed species affected by the electric field, and ceasing sampling activities for at least five minutes or until fish have departed the area. Additionally, sampling will not occur when water temperatures exceed 22 °C. MBI will continue reporting all listed species encounters to NOAA within 24 hours and submit annual monitoring reports summarizing sampling activities and incidental takes.

MBI states that boat-mounted pulsed DC electrofishing remains the most effective and least harmful method for conducting large-river fish assemblage surveys. Alternative sampling methods were considered but rejected because they are less effective, more resource intensive, and may require greater handling of listed species; thereby, increasing the risk of injury or mortality. MBI further proposes adaptive management measures, including monitoring incidental take levels throughout the sampling season and modifying, reducing, or ceasing sampling activities if authorized take limits are approached. Based on more than two decades of sampling with no documented mortality of ESA-listed species, MBI concludes that the proposed conservation measures minimize the potential for adverse effects to listed species while supporting long-term monitoring of fish assemblages in the Kennebec River system.

MBI also proposes several supplemental conservation and outreach measures intended to support broader ESA-listed species recovery efforts and public awareness. These measures include collaboration with the NOAA Fisheries Office of Habitat Conservation Restoration Center in ( printed page 41623) Maine to conduct fish assemblage sampling upstream of the Lemon Stream Dam in Starks, Maine. Sampling at this location is intended to provide state and federal agency personnel with direct exposure to electrofishing procedures, habitat conditions, and associated native and non-native fish assemblages to inform future recovery planning for ESA-listed species. No additional ESA take authorization would be required for activities at this site because ESA-listed species are not expected to occur there.

As an additional conservation-related measure, MBI will continue presenting research findings and monitoring results at regional technical conferences and outreach events to increase awareness of the ecological importance of the middle and lower Kennebec River for ESA-listed species. MBI currently presents annually at the Northeast Aquatic Biologists Conference and, with support from The Nature Conservancy, is considering additional presentations at the Maine Atlantic Salmon Forum, Maine Water Conference, and Northeast Fish and Wildlife Conference, as well as presentations to donors and stakeholders associated with the Kennebec River Trust. MBI states that these outreach efforts are intended to build support for restoration of Atlantic salmon access to historic spawning habitat within the Sandy River watershed.

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 216-6A, Environmental Review Procedures for Implementing the National Policy Act (1999). NMFS has preliminarily determined that the proposed action falls within a category of actions that are categorically excluded from the requirement to prepare an Environmental Assessment or Environmental Impact Statement, as the action does not individually or cumulatively have a significant effect on the human environment.

Next Steps

This notice is provided pursuant to section 10(c) of the ESA. NMFS will evaluate the application, associated documents, and comments received during the comment period to determine whether the application meets the requirements of section 10(a) of the ESA. If NMFS determines that the requirements are met, a permit will be issued for incidental takes of ESA-listed sturgeon. The final NEPA and permit determinations will not be made until after the end of the comment period. NMFS will publish a record of its final action in the Federal Register .