[Federal Register: May 14, 2004 (Volume 69, Number 94)]
[Page 26878-26879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Programmatic Safe Harbor Agreement and Receipt of an Application 
for an Enhancement of Survival Permit Associated With Proposed 
Restoration and Reintroduction Activities for Wyoming Toads Within 
Suitable Wetland Habitat of Albany County, WY

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.


SUMMARY: The Laramie Rivers Conservation District (Applicant) has 
applied to the Fish and Wildlife Service (Service) for an Enhancement 
of Survival Permit (ESP) for the Wyoming toad pursuant to section 
10(a)(1)(A) of the Endangered Species Act of 1973 (U.S.C. 1531 et 
seq.), as amended (Act). This permit application includes a draft Safe 
Harbor Agreement (SHA) between the Applicant and the Service. The 
proposed SHA and permit would become effective upon signature of the 
SHA and issuance of the permit and would remain in effect for 15 years. 
We have made a preliminary determination that the proposed SHA and 
activities described in the permit application could potentially result 
in the take of Wyoming toads when fully implemented; thus, these and 
all other impacts have been reviewed through an Environmental 
Assessment (EA) under the National Environmental Policy Act of 1969, as 
amended (NEPA). This notice is provided pursuant to NEPA and section 10 
of the Act and the Service's Safe Harbor Policy (64 FR 32717). The 
Service specially requests information, views, and opinions from the 
public via this notice. Further, the Service is specifically soliciting 
information regarding the adequacy of the SHA as measured against the 
Service's Safe Harbor Policy and the regulations that implement it.

DATES: Written comments on the SHA and ESP application should be sent 
to the Service's Regional Office (see ADDRESSES) and should be received 
on or before June 14, 2004.

ADDRESSES: Persons wishing to review the SHA and ESP application may 
obtain a copy by writing the Service's Mountain-Prairie Regional 
Office, Denver, Colorado. Documents also will be available for public 
inspection during normal business hours at the Regional Office, 134 
Union Boulevard, Denver, Colorado 80228-1807, or the Wyoming Field 
Office, U.S. Fish and Wildlife Service, 4000 Airport Parkway, Cheyenne, 
Wyoming 82001. Written data or comments concerning the SHA or ESP 
application should be submitted to the Regional Office and must be in 
writing to be processed. Comments must be submitted in writing to be 
adequately considered in the Service's decision-making process. Please 
reference permit number TE-083409 in your comments, or in requests of 
the documents discussed herein.

FOR FURTHER INFORMATION CONTACT: Pat Mehlhop, Regional Safe Harbor 
Coordinator, (see ADDRESSES), telephone 303-236-4215, facsimile 303-
236-0027; or Brian T. Kelly, Field Supervisor, Wyoming Field Office, 
(see ADDRESSES), telephone 307-772-2374, facsimile 307-772-2358.

SUPPLEMENTARY INFORMATION: The Wyoming toad is a glacial relict species 
which was formerly common in the Laramie Basin in Albany County, 
Wyoming. The population was noted to decrease in the early 1960s. One 
isolated population was discovered in 1987. This site later became the 
Mortenson Lake National Wildlife Refuge and is currently the only place 
in the world this species is found. A captive breeding program was 
initiated in 1993 and reintroduction at Mortenson Lake began in 1995. 
The reestablishment of the Wyoming toad at Mortenson Lake has been 
severely hindered, mainly by the presence of the amphibian chytrid 
fungus (Batrachochytrium dendrobatidis). This fungus has been 
implicated in the declines of several other amphibian species 
worldwide. The presence of the fungus, as well as deteriorating water 
quality and chemistry at Mortenson Lake, make it necessary to seek 
suitable reintroduction sites in Albany County, Wyoming.
    The primary objective of this SHA is to encourage voluntary 
conservation measures and/or reintroduction attempts to benefit the 
Wyoming toad by relieving a landowner, who enters into a Cooperative 
Agreement with the Applicant, from any additional section 9 liability 
under the Act beyond that which exists at the time the Cooperative 
Agreement is signed (``regulatory baseline''). An SHA encourages 
landowners to conduct voluntary conservation activities and assures 
them that they will not be subjected to increased restrictions should 
their beneficial stewardship efforts result in increased endangered 
species populations. Application requirements and issuance criteria for 
ESPs through SHAs are found in 50 CFR 17.22(c). As long as enrolled 
landowners allow the agreed upon habitat improvements to be completed 
on their property and maintain their responsibilities, they may make 
use of the property during the permit term, even if such use results in 
the take of individual Wyoming toads or harm to their habitat. 
Opportunity to enroll in the SHA with the Applicant will be open to 
landowners possessing suitable lacustrine wetland habitat in Albany 
County, Wyoming. They will receive a Certificate of Inclusion when they 
sign a Cooperative Agreement. The Cooperative Agreement will include--
(1) A map of the property; (2) delineation of the portion of the 
property to be enrolled and its acreage; (3) physical description of 
the property; (4) baseline responsibility (zero); (5) the 
responsibilities of the Cooperator and the Applicant; and (6) 
management activities.
    The Applicant will provide draft copies of Cooperative Agreements 
to the Service for an opportunity to review and concur with the 
recommended habitat management activities. The Service will have a 
period of 30 calendar days in which to make comments. If no comments 
are received within 30 days, the Applicant may proceed to finalize the 
Cooperative Agreement. The Applicant, as the permittee, will be 
responsible for annual monitoring and reporting related to 
implementation of the SHA and Cooperative Agreements and fulfillment of 
their provisions. Upon request by the Service, the Applicant will make 
available records and materials related to implementation of the 
    Within the Cooperative Agreement, participating landowners will be 
asked to choose one of two conservation measures necessary to provide a 
net conservation benefit to the toad. These are to--(1) allow 
reintroduction of Wyoming toads onto enrolled property and/or (2) 
maintain, enhance, or create suitable Wyoming toad habitat. Moreover, 
any additional conservation activities above and beyond the required 
conservation measurements will be covered by the ESP. These actions, 
where appropriate, could include (but are not limited to)--(1) allowing 
reintroduction of Wyoming toads on the enrolled portions of the 
property; (2) voluntary changes in grazing and haying regime, 
pesticide, and herbicide use in accordance with the Service's 1994 
Biological Opinion addressing pesticides and herbicides and label

[[Page 26879]]

restrictions, or other activities to enhance toad habitat and minimize 
take; or (3) facilitation of the implementation of other objectives 
recommended by the Wyoming Toad Recovery Plan.
    While determining the effects of this action, the Service 
considered the action or impact area to be the maximum number of 
enrolled properties and a 1-mile radius from these properties to 
account for toad dispersal, which could include adjacent, neighbor 
lands. The effect to the Wyoming toad through implementation of 
landowner day-to-day operations (grazing, haying, etc.) on all 
potential enrolled lands will be evaluated during the section 7 
consultation process.
    After maintenance of the restored/created/enhanced Wyoming toad 
habitat on the property or allowing reintroduction of Wyoming toads on 
the property for the agreed-upon term, cooperators may then conduct 
otherwise lawful activities on their property that result in the 
partial or total elimination of the restored habitat and the incidental 
taking of Wyoming toads as a result of such habitat elimination. 
However, the restrictions on returning a property to its original 
baseline condition include--(1) Wyoming toads may not be captured, 
killed, or otherwise directly ``taken,'' (2) the Applicant and the 
Service will be notified a minimum of 15 calendar days prior to the 
activity and provided the opportunity to capture, rescue, and/or 
translocate any Wyoming toads, if necessary and appropriate; and (3) 
return to baseline conditions must be completed within the 15-year term 
of the permit issued to the Applicant. Cooperative Agreements may be 
extended if the Applicant's permit is renewed and that renewal allows 
for such extension.
    The Service has evaluated the impacts of this action under the 
National Environmental Policy Act by drafting an Environmental 
Assessment. The documentation also is subject to public comment and 
will be made available to the public concurrently with the availability 
of the SHA and ESP.
    The Service also will evaluate whether the issuance of the ESP 
complies with section 7 of the Act by conducting an intra-Service 
section 7 consultation on the issuance of the permit. The results of 
the biological opinion, in combination with the above findings and any 
public comments, will be used in the final analysis to determine 
whether or not to issue the requested ESP, pursuant to the regulations 
that guide issuance of this type of permit.

    Dated: April 30, 2004.
Mike Stempel,
Acting Regional Director, Denver, Colorado.
[FR Doc. 04-10949 Filed 5-13-04; 8:45 am]