[Federal Register: October 4, 1999 (Volume 64, Number 191)]
[Page 53683-53686]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Record of Decision for Issuance of an Endangered Species Permit 
To Allow Incidental Take of the Endangered Karner Blue Butterfly in 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Record of decision.


SUMMARY: Notice is hereby given that the Fish and Wildlife Service 
(Service) has decided to issue a permit to allow incidental take of the 
endangered Karner blue butterfly (Lycaeides melissa samuelis) within 
the State of Wisconsin. The permit is issued under the authority of 
section 10(a) of the Endangered Species Act of 1973, as amended (ESA), 
for a duration of 10 years. Issuance of this permit allows for 
implementation of the Statewide Habitat Conservation Plan (HCP) for 
Karner Blue Butterfly in Wisconsin. Alternative A, as analyzed by the 
Environmental Impact Statement (EIS), allows for implementation of a 
consolidated, statewide plan designed to conserve butterfly habitat 
while carrying out otherwise lawful land use activities on public and 
private lands. The lead applicant is the Wisconsin Department of 
Natural Resources (DNR). In addition, 25 Partners to the HCP will work 
together to implement this plan. This decision is based upon 
information and analysis found in the HCP, Implementing Agreement, 
Partner Species and Habitat Conservation Agreements, EIS, and comments 
from the public on the HCP/EIS. This Record of Decision was prepared in 
accordance with the Council on Environmental Quality Regulations (40 
CFR 1505.2).



    The listing of the Karner blue butterfly on December 14, 1992, and 
the attending prohibition on ``take'' of the butterfly or its habitat 
posed a restraint on many land uses and land management activities in 
Wisconsin. In order to avoid violation of Section 9 of the ESA, non-
Federal landowners must obtain a Section 10(a)(1)(B) permit to 
authorize incidental take of Federally listed species. Beginning in 
1994, the DNR spearheaded an effort to address land use issues 
throughout Wisconsin through the development of a statewide HCP.
    On April 1, 1999, the Service received an application for an 
incidental take permit under the ESA from the Wisconsin DNR. The 
application was submitted on behalf of a partnership of 26 landowners 
that include state agencies, county forest departments, industry, a 
conservation organization, and others. In accordance with the 
regulations, an HCP accompanied the permit application. In addition, 
the DNR prepared the EIS that accompanied this HCP, in coordination 
with the Service. A Federal Register Notice announcing receipt of the 
permit application, and soliciting comments on the application, was 
published on April 14, 1999. In addition, notices regarding the 
availability of the draft and final EIS were published on April 16, May 
7, and July 2, 1999. Seven comments were received during the public 
interest review and responses to those comments were incorporated into 
the final EIS.

Description of Proposal

    The application for an incidental take permit (ITP) seeks 
authorization for take of the Karner blue butterfly in

[[Page 53684]]

conjunction with a variety of land use and land management activities 
throughout the species range in Wisconsin. These activities include 
forestry practices, utility right-of-way management, transportation 
management, agricultural practices, recreation management, and barrens, 
prairie, and savanna management. A strong commitment to adaptive 
management and monitoring provides for changing practices over time to 
ensure long-term conservation of the species. In addition, the HCP 
incorporates an innovative Participation Plan that allows other 
landowners to become party to the permit and encourages private 
landowner participation in conservation of the Karner blue butterfly on 
a voluntary basis.
    The project area encompasses the entire State of Wisconsin. 
However, the High Potential Range of the butterfly encompasses 7 
million acres within Wisconsin, and that is the area where there is a 
potential to ``take'' the butterfly. Within that range, partners have 
established a goal of no-net-loss (and possibly a gain) of suitable 
Karner blue butterfly habitat which will be accomplished with a variety 
of conservation strategies. Management of forestry tracts, for example, 
will include pre-treatment surveys to determine whether butterflies are 
present and, if present, treatments such as cutting or removal of 
understory will be carried out to allow for the movement of butterflies 
into newly created early successional habitat. In other words, new 
habitat will become available for occupation as the older forest 
becomes less suitable. The effect of this type of forestry management 
will be to create a shifting mosaic of habitat capable of supporting 
the butterfly. Another example of a conservation strategy designed to 
enhance conservation of Karner blue butterflies involves managing of 
utility rights-of-way. In these circumstances, butterflies are 
conserved by mowing at certain heights that minimize harm to eggs or 
larva or by restricting use of certain types of pesticides that are 
more harmful to lepidopterans. Through changing techniques for managing 
the R-O-W corridors, the utility partners have minimized harm to the 
butterfly and, in many cases, will create or maintain habitat that is 
needed for their existence in those R-O-Ws. Overall, a variety of 
conservation strategies serve to create a disturbance dependent 
landscape that must exist for the continued survival of this species.
    The DNR is the lead applicant for this effort and is committed to 
providing administrative oversight during implementation of this HCP. 
Twenty-five partners to the HCP have entered into legally binding 
Species and Habitat Conservation Agreements (SHCA) with the DNR. These 
SHCAs outline the conservation and/or recovery measures that each 
Partner will take to reach the goals of the HCP. In addition, the DNR 
has developed an SHCA to outline what will be done on DNR properties to 
both conserve and recover the butterfly. Processes for inclusion of 
future partners are included in the HCP. The ITP application requested 
a permit for a 10-year period.
    The HCP was submitted in accordance with the regulations at 50 CFR 
Part 17.22(b)(1)(iii). The Service determined that the HCP met 
statutory requirements and based its decision to issue an ITP on the 
following analysis.

ESA Section 10(a)(2)(A) HCP Criteria

1. The Impact That Will Likely Result From Such Taking

    The HCP/EIS, Implementing Agreement, and associated SHCAs 
adequately describe the proposed activities and the anticipated impact 
on the Karner blue butterfly and its habitat within the project area. 
Due to the nature of the species, disturbance of the landscape is 
necessary for continued survival. The activities that are anticipated 
to take the butterfly will be the same activities that will ensure 
availability of suitable habitat. In other words, the take of 
individuals will occur during land management/land disturbance 
activities, but the disturbance must occur for the habitat to remain 
suitable. The Karner blue butterfly will benefit at a population level 
at those sites in spite of the take of individuals during the 
manipulation of the landscape. Failure to manage habitats across the 
Wisconsin landscape would actually result in loss of Karner blue 
butterflies due to loss of their habitat through natural succession. 
The HCP and SHCAs provided sufficient information for the Service to 
evaluate the impacts of the proposed activities. The Service's analysis 
of the project impact is described its Biological Opinion on the 
issuance of an Incidental Take Permit, dated September 16, 1999.

2. The Steps That Will Be Taken To Monitor, Minimize, and Mitigate Such 
Impacts, The Funding That Will Be Available To Implement Such Steps, 
and the Procedures To Be Used To Deal With Unforeseen Circumstances

    The applicant's HCP, along with the partner SHCA's, provide 
measures to avoid or minimize harm to individuals, mitigation measures 
to compensate for unavoidable losses, and a monitoring program to 
assure that suitable habitat is maintained to achieve a goal of no-net-
loss throughout the documented range in Wisconsin. The HCP provides 
adequate funding and includes measures to ensure implementation of the 
HCP components.
    Conservation measures include management of forest habitats in a 
manner that creates a shifting mosaic of available habitat, management 
of rights-of-way to minimize harm to individuals during mowing and 
pesticide application, and creation of suitable habitats across the 
landscape which contribute to recovery of the Karner blue butterfly. In 
addition, manipulation of existing Karner blue butterfly habitat in a 
manner that does not allow for regeneration must meet certain criteria. 
Larger landowners, for example, must mitigate for permanent loss of 
    In order to assure that the goal of no-net-loss is achieved, the 
DNR and HCP Partners have designed a monitoring program that will 
measure the outcome of land treatments through pre-treatment surveys 
and post-treatment surveys, research, and annual monitoring of a 
representative sample of all known element occurrences of the Karner 
blue butterfly. The DNR is prepared to share Natural Heritage Data with 
the Service and the Service will be fully able to participate in 
oversight activities, site visits, and HCP committee activities as the 
DNR and Partners move into implementation of this HCP. If the expected 
outcome of land management activities is not met (i.e., no-net-loss), 
the HCP Partnership is committed to using adaptive management to 
address the need to change their activities to be consistent with 
conservation of the butterfly.
    The treatment of unforeseen circumstances in the HCP is consistent 
with the Service's Habitat Conservation Plan Assurances (``No 
Surprises'') Rule, dated February 23, 1998.

3. Alternative Actions To The Taking the Applicant Considered and the 
Reasons Such Alternatives Are Not Proposed To Be Utilized

    Alternatives to the proposed project are described in the HCP. Due 
to the nature of the project (consolidated, statewide plan), 
alternatives other than a statewide HCP were limited to an HCP with 
mitigation banking, a reduced scope HCP and no action. The DNR took the 
lead to develop a statewide plan, along with multiple partners, to 
enable Wisconsin to conserve this species on a scale that will provide 
for more long-

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term benefits and regulatory certainty to the citizens of Wisconsin. 
All of the other alternatives would result in the processing of 
multiple permits by the Service, in response to multiple landowner 
needs. Alternatives to the proposed project would either not accomplish 
the anticipated benefit that will be gained as a result of large-scale 
conservation effort, or were more injurious to Karner blue butterflies 
through lack of action (disturbance) on the landscape. As described 
above, the Karner blue butterfly is dependent upon a landscape that 
requires disturbance. Since natural processes such as fire are not part 
of today's landscape, the habitat must be actively managed to maintain 
an early successional component for this species. The no action 
alternative would result in long-term harm to the butterfly population 
due to the habitat becoming unsuitable over time.

4. Other Measures That The Director May Require as Being Necessary or 
Appropriate for the Purposes of the Plan

    The HCP Partnership worked closely with the Service in developing 
this HCP. Over a period of five years, the Service was able to provide 
input on appropriate conservation measures, minimization of take, steps 
to promote recovery, and legal and regulatory matters. The Partnership 
incorporated recommended measures designed to conserve the Karner blue 
butterfly, including adaptive management and monitoring to ensure that 
anticipated goals are achieved. Mitigation will compensate for losses 
and the minimum expected outcome is no-net-loss of available habitat 
over the 10-year permit period. Positive outreach and education efforts 
are expected to provide a net increase in available habitat over time, 
although this has not been ``guaranteed'' due to the voluntary nature 
of the strategy to involve private citizens. A follow-up evaluation of 
this private landowner strategy will be conducted after the HCP has 
been in its implementation phase for three years.
    In addition to the requirements that an applicant's Habitat 
Conservation Plan must meet, the Service is responsible to assure that 
certain criteria found at 50 CFR 17.22 (b)(2) are met, prior to issuing 
an incidental take permit. The following paragraphs summarize the 
Service's findings relative to ITP issuance criteria.

ESA Section 10(a)(1)(B) Permit Issuance Criteria

1. The Take Will Be Incidental

    The Service finds that the take will be incidental to otherwise 
lawful activities, including forestry, utility right-of-way management, 
transportation corridor management, and other lawful activities as 
reviewed above. In addition, take of individuals will be primarily in 
the context of habitat manipulation that is beneficial to the long term 
survival of this species. Absent disturbance, the habitat will become 
unsuitable due to natural succession.

2. The Applicant Will, to the Maximum Extent Practicable, Minimize and 
Mitigate the Impacts of the Taking

    The Partners to the HCP have committed to a wide variety of 
conservation measures, outreach activities, adaptive management, and 
other strategies designed to minimize harm to the species and mitigate 
for any unavoidable losses. Take of the butterfly will primarily occur 
in a manner that can be characterized as ``short-term'' take, or 
temporary disturbance of habitat that results in habitat improvement 
for the butterfly. Disturbance of the landscape will occur in a pattern 
designed to create a shifting mosaic of suitable Karner blue butterfly 
habitat over time. ``Permanent take,'' in the form of habitat 
destruction, will be mitigated. The Service's biological opinion 
authorized this type of take at a level considered to be reasonable 
with the expectation that not much ``permanent take'' will occur under 
this ITP. The Service finds that the HCP Partnership has met this 
criterion under the Act and has provided for mitigation and 
minimization of take to the full extent requested.

3. The Applicant Will Ensure That Adequate Funding for the HCP and 
Procedures To Deal With Unforeseen Circumstances Will Be Provided

    The HCP Partnership is committed to funding implementation of this 
Plan. The State of Wisconsin, Department of Natural Resources, has 
pledged to seek funding through their budget processes and has assured 
the Service that they will continue to fund HCP implementation to the 
extent that the State Legislature appropriates funds. The DNR has hired 
a full-time HCP Coordinator to oversee the HCP. Twenty-five other 
partners have committed to funding specific measures that are 
inumerated in their Species and Habitat Conservation Agreements. During 
the development of this HCP, the DNR and partners committed dollars not 
only in staff time, but in funding of research for development of 
protocols, funding of educational materials, and other activities.
    The Service's HCP Assurances (``No Surprises'') rule is discussed 
in the HCP and measures to address changed and unforeseen circumstances 
have been identified. Adaptive management and monitoring will be 
implemented to address changes over the life of the permit; 
coordination mechanisms are in place to address changed circumstances 
that could be anticipated at the time of HCP development. Unforeseen 
circumstances would necessitate coordination between the Service and 
the DNR. The DNR has committed to a coordination process to address 
such circumstances.
    The Service has, therefore, determined that the Partnership's 
financial commitment(s), along with their willingness to address 
changed and unforeseen circumstances in a cooperative fashion, is 
sufficient to meet this criterion.

4. The Take Will Not Appreciably Reduce the Likelihood of the Survival 
and Recovery of the Species in the Wild

    The issuance of this permit has been reviewed by the Service under 
Section 7 of the Act. The biological opinion rendered a determination 
that issuance of this ITP will not jeopardize the continued existence 
of the Karner blue butterfly in the wild. The take that is authorized 
through the Incidental Take Permit will be largely unquantifiable due 
to the nature of the action, that is, ``short term'' taking associated 
with habitat disturbance. However, survival and recovery of this 
species would be impossible absent habitat disturbance since the 
species depends on an early successional plant community. Any 
permanent, long-term take will be mitigated. The level of permanent 
take has been set at a threshold that the Service has determined is 

5. Other Measures the Secretary May Require as Being Necessary or 
Appropriate for the Purposes of This Plan Have Been Met

    The Service and the Office of the Field Solicitor, U.S. Department 
of the Interior, were involved in early discussions regarding the HCP, 
Implementing Agreement, and partner SHCAs. The Service commented on 
draft documents, participated on the HCP team and subteams during the 
development phase, and worked closely with the DNR to assure that 
conservation of the species would be assured and recovery would not be 
jeopardized. The HCP incorporates Service recommendations for 
minimization and mitigation, as well as steps to monitor the effects of 
this HCP and ensure success. Annual monitoring and reporting mechanisms 
have been designed to ensure that changes to

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management strategies can be implemented if the outcome of proposed 
management regimes is inconsistent with the HCP goals for the species. 
It is the Service's position that no additional measures are required 
to implement the intent and purpose of the HCP.

National Environmental Policy Act Determination and Public Comment

    An Environmental Impact Statement (EIS) was prepared to accompany 
this HCP due to the large scale of the effort and the Service's 
determination that this HCP was precedent setting. The EIS analyses the 
Proposed HCP and No Action alternatives in detail. The EIS describes 
the process that was followed to develop the HCP, including the input 
of partners and the interested public.
    A Notice of Intent to prepare an EIS was announced in the Federal 
Register on June 5, 1995. Public scoping meetings followed at three 
locations in Wisconsin. The DNR also provided avenues for public 
involvement in the planning process and development of the HCP. Many 
interests were represented throughout the development process. Once the 
ITP application was received by the Service, an announcement of 
availability of the draft EIS was made in the Federal Register on April 
16, 1999. The Service's permit requirements also call for announcement 
of availability of permit applications. Therefore, a more detailed 
announcement was made in the April 14, 1999, Federal Register which 
included a description of the proposed HCP and the EIS and included a 
web site address for complete documentation. Several hundred copies of 
the HCP/EIS were distributed to interested parties, including those 
that had expressed an interest during the development phase. An 
additional four requests for the HCP/EIS were received as a result of 
the announcement of availability of the drafts. Seven comment letters 
were received during the public review period and responses to the 
comments have been incorporated into the document(s). The announcement 
of the final EIS was made on July 2, 1999.
    Based on the findings described in this record of decision, the 
Service has decided to issue an ESA Section 10(a)(1)(B) Incidental Take 
Permit to the Wisconsin Department of Natural Resources and HCP 
Partnership for a period of 10 years.

    Dated: September 27, 1999.
William F. Hartwig,
Regional Director, Region 3, U.S. Fish and Wildlife Service, Fort 
Snelling, Minnesota.
[FR Doc. 99-25535 Filed 10-1-99; 8:45 am]