[Federal Register: November 9, 2010 (Volume 75, Number 216)]
[Page 68819-68821]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R1-ES-2010-N210; 10120-1112-0000-F2]

Preparation of an Environmental Impact Statement for Issuance of 
an Incidental Take Permit for the Proposed Kauai Seabird Habitat 
Conservation Plan on Kauai, HI

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent and notice of meeting.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), advise the 
public that we intend to prepare a joint Federal/State Environmental 
Impact Statement (EIS) under the National Environmental Policy Act 
(NEPA), in coordination with the Hawaii Department of Land and Natural 
Resources (DLNR), for the proposed Kauai Seabird Habitat Conservation 
Plan (KSHCP) and the expected applications from public and private 
entities on Kaua'i for incidental take permits (ITPs, or permits). The 
proposed KSHCP is being prepared under the Endangered Species Act of 
1973, as amended (ESA). The ITPs would authorize incidental take of the 
Federally endangered Hawaiian petrel (Pterodroma sandwichensis), the 
Federally threatened Newell's (Townsends) shearwater (Puffinus 
auricularis newelli), and the band-rumped storm-petrel (Oceanodroma 
castro), a Federal candidate species that could become listed during 
the term of the permit (collectively, these three species are hereafter 
referred to as the ``Covered Species''). The DLNR is preparing the 
KSHCP under which numerous applicants are anticipated to apply for 
incidental take of the Covered Species due to adverse effects of light 
attraction and these birds colliding with utility lines and associated 
    We provide this notice to announce the initiation of a public 
scoping period during which we invite other agencies and the public to 
attend a public meeting and submit oral and written comments that 
provide suggestions and information on the scope of issues and 
alternatives to be addressed in the joint EIS.

DATES: Comments: To ensure consideration, please submit your comments 
by December 9, 2010.
    Public Meeting Dates and Locations:
    One Monday, November 10, 2010, 6-8 p.m at the Chiefess Kamakahelei 
Middle School Cafeteria, 4431 Nuhou Street, Lihue, HI 96766.

ADDRESSES: Oral and written comments will be accepted during the 
meeting. You may also submit comments by one of the following methods:
    U.S. mail or hand-delivery to: Bill Standley, U.S. Fish and 
Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala 
Moana Blvd., Room 3-122, Honolulu, HI 96850.
    Facsimile: (808) 792-9580 (Attention: Bill Standley).
    Electronic mail (e-mail): bill_standley@fws.gov.
    Comments received will be available for public inspection by 
appointment during normal business hours (Monday through Friday, 8 a.m. 
to 4:30 p.m.) at the above address.

FOR FURTHER INFORMATION CONTACT: Bill Standley, Fish and Wildlife 
Biologist, U.S. Fish and Wildlife Service (see ADDRESSES above), 
telephone (808) 792-9400.


Reasonable Accommodation

    Persons needing reasonable accommodation in order to attend and 
participate in the public meeting should contact Bill Standley, Fish 
and Wildlife Biologist, as soon as possible (see ADDRESSES), or at 
(808) 792-9400. In order to allow sufficient time to process requests, 
please call no later than one (1) week before the public meeting. 
Information regarding this proposed action is available in alternative 
formats upon request.


    Section 9 of the ESA (16 U.S.C. 1538) and Federal regulations 
prohibit the take of fish and wildlife species listed as endangered or 
threatened. The term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct. However, under section 10(a) of the ESA (16 U.S.C. 
1539 (a)), we may issue permits to authorize incidental take of listed 
fish and wildlife species. Incidental take is defined as take that is 
incidental to, and not the purpose of, carrying out an otherwise lawful 
activity. Regulations governing ITPs for threatened and endangered 
species are found at 50 CFR 17.32 and 17.22. If the permits are issued, 
each permittee approved under the KSHCP would receive assurances

[[Page 68820]]

under the Service's ``No Surprises'' regulations at 50 CFR 17.32(b)(5) 
and 50 CFR 17.22(b)(5).
    Section 10 of the ESA specifies the requirements for the issuance 
of ITPs to non-Federal entities. Any proposed take must be incidental 
to otherwise lawful activities and cannot appreciably reduce the 
likelihood of the survival and recovery of the species in the wild. 
Among other requirements the impacts of such take must also be 
minimized and mitigated to the maximum extent practicable. To obtain an 
ITP, an applicant must submit a plan describing the impact that will 
likely result from the proposed taking, the measures for minimizing and 
mitigating the take, the funding available to implement such measures, 
alternatives to the taking, and the reason why such alternatives are 
not being implemented.

Covered Species

    The Newell's shearwater (ua u), Hawaiian petrel (a o) and band-
rumped storm petrel (ake ake) breed on the island of Kauai and feed on 
the open ocean. Over 80 percent of the world's population of Newell's 
shearwater nests on Kauai and its population have declined severely 
since the early 1990s. The affected seabirds spend a large part of the 
year at sea. Adults return to nesting grounds in the interior mountains 
of Kauai beginning in March and April, and depart beginning in 
September. The Hawaiian petrel and Newell's shearwater are philopatric 
(return to the nest area near where they were hatched). Fledglings 
(i.e., young birds learning how to fly) of these species make their 
first journey from the nesting colony to the sea from late September 
through early December, with a peak occurring in mid-October and again 
in mid-November.
    The adverse effects to seabirds from light attraction and 
collisions with utility lines have been documented on Kauai for over 
three decades. Since 1979, the Save our Shearwaters Program (SOS) has 
recovered over 32,000 downed seabirds that are voluntarily brought to 
the program by the community. These ongoing impacts in combination with 
other land-based threats such as predation and habitat alteration 
(including that caused by hurricanes) are thought to have contributed 
to severe population declines in the Covered Species. Both adults and 
fledglings can collide with tall buildings, towers, power lines, and 
other structures while flying at night between their nesting colonies 
and at-sea foraging areas. Nocturnally active seabirds, particularly 
fledglings, are attracted to bright lights. The ``fallout'' of Covered 
Species and other seabirds due to light attraction occurs primarily 
from September through December. Disoriented seabirds are commonly 
observed circling repeatedly around exterior light sources until they 
fall exhausted to the ground or collide with structures. Species such 
as shearwaters and petrels typically need open spaces with strong 
updrafts and vertical drop offs to take off from land. Without human 
intervention, downed seabirds are assumed to die in most instances due 
to starvation, predation, or mortality resulting from vehicular 
traffic. The annual release rate for rescued seabirds through the SOS 
Program is over 90 percent.
    There is a need to address the long-standing and previously 
unmitigated, unauthorized incidental take of the Covered Species caused 
by light attraction. Since 2005, dozens of businesses and agencies on 
Kauai voluntarily began efforts to avoid and minimize light attraction 
of seabirds and train staff in the active search, rescue, and reporting 
of downed birds. However, to the extent incidental take cannot be 
eliminated, Federal and State incidental permits are needed.

The Proposed Plan

    In accordance with section 10(a)(2)(A) of the ESA, the DLNR is 
preparing the island-wide, multi-party KSHCP. As presently conceived 
the KSHCP proposes a 30-year permit period to address incidental take 
of the Covered Species. The purpose of the KSHCP is to address the 
incidental take of the Covered Species due to existing and planned 
outdoor lights and overhead utilities. The KSHCP is designed as a 
multi-party plan with each participant holding a State and Federal 
permit and being legally responsible for meeting the conditions of both 
permits. In accordance with the ESA the availability of the KSHCP for 
public review and comment will be noticed in the Federal Register when 
a complete application package is submitted to the Service.
    The maximum terrestrial covered area for the KSHCP includes 549 
square miles and over 350,000 acres on Kauai. The size of the covered 
area for participating entity will be a specified subset of this total 
using Tax Map Key (TMK) or other legally acceptable definitions, and 
will be included for with each voluntary ITP application. Each 
participating entity would hold a State and Federal permit and sign an 
Implementing Agreement (IA) all of which would define their legal 
responsibilities for the implementation of avoidance, minimization, and 
monitoring measures, and for submitting HCP fees to fund compensatory 
mitigation, HCP administration, compliance monitoring, effects 
monitoring and mitigation efficacy monitoring. Adaptive management and 
annual monitoring would also be essential components of the HCP.
    Entities seeking take authorization under the KSHCP would be 
required to fill out an application template that requires specific and 
detailed information about the covered facility in terms of its 
location, size, ownership, lights and utility lines, regulations 
pertaining to the use of lights and utility lines, avoidance and 
minimization plans and evaluation of alternatives. The ITP application 
would also contain a section used to calculate recommended incidental 
take coverage levels for all species. Incidental take calculations 
would be based on the best available data sets including SOS recovery 
data and nocturnal ornithological radar data.
    KSHCP participants would be required to: (1) Avoid impacts to the 
Covered Species to the maximum extent practicable by, for example, 
removing or turning off problematic lights and undergrounding high risk 
utility lines; and (2) minimize impacts to the Covered Species to the 
maximum extent practicable, for example, through a variety of KSHCP-
recommended methods such as shielding, redirecting lights, installing 
motion sensors, altering light/utility structures, and training staff 
to respond to downed seabirds appropriately. Selected avoidance and 
minimization measures must be described in thorough detail by each 
applicant, including a schedule and funding and the reasons for 
selecting among avoidance and minimization alternatives would need to 
be clearly defined and supported in each ITP application submitted to 
the Service under the KSHCP. Support for the SOS program would likely 
be part of the KSHCP impact minimization policy because SOS recoveries 
support the rescue, rehabilitation, and release of affected (downed) 
seabirds. All participants in the KSHCP would be legally bound to 
implement avoidance and minimization requirements tailored to their 
unique facility(ies) as detailed in their ITP and IA.
    Habitat protection and management programs implemented to 
compensate for unavoidable take of the Covered Species would be 
detailed in the KSHCP. For example, the mitigation program would 
include colony protection (including surveys, fencing, and predator 
control), monitoring, and

[[Page 68821]]

management actions necessary to compensate for the impacts of 
incidental take of the Covered Species and to provide a net 
environmental benefit. The goals and objectives of the compensatory 
mitigation program would be based on specific recovery goals for each 
listed species. The KSHCP compensatory program would likely include 
weed, ungulate, and predator removal designed to benefit the Covered 
Species and other listed flora and fauna. Part of the analysis in the 
KSHCP will be to evaluate the potential effects of covered activities 
to rare plants, including but not limited to Acaena exigua, Adenophorus 
periens, Alsinidendron lychnoides, Cyanea recta, Cyrtandra cyaneoides, 
Delissea rivularis, Exocarpus luteolus, Myrsine linearifolia, 
Nothocestrum peltatum, Plantago princeps var. anomala, Plantago 
princeps var. longibracteata, Platanthera holochila, Poa sandvicensis, 
Poa siphonoglossa, Remya montgomeryi, Schiedea membranacea, Solanum 
sandwicense, and Xylosma crenatum. A ``Plant Protection Plan'' should 
be included in the KSHCP to ensure protection of all listed plants 
during seabird mitigation actions. The KSHCP compensatory mitigation 
program is also expected to support long-term conservation partnerships 
with land owners and existing efforts by non-profit organizations that 
provide long-term benefits to listed seabirds, plants, watersheds, and 
other non-listed plants and animals of Kauai.
    Fees for each applicant/participant would be proportionate to the 
level of incidental take authorized as well as the type of impact: 
lights or utility lines. Fees submitted under the KSHCP would be used 
to fund HCP administration, monitoring, compensatory mitigation, and 
the SOS Program.
    As currently envisioned, administration and management related to 
implementation of the KSHCP would be the responsibility of the DLNR or 
their designee, with appropriate oversight by the Service. An annual 
review of actions implemented under the KSHCP would be conducted by the 
Endangered Species Recovery Committee (ESRC). Based on that review the 
ESRC may forward recommendations for modifying KSHCP-related actions to 
the Board of Land and Natural Resources.

Environmental Impact Statement

    NEPA (42 U.S.C. 4321 et seq.) requires that Federal agencies 
conduct an environmental analysis of their proposed actions to 
determine if the actions may significantly affect the human 
environment. Under NEPA, our action would be the proposed issuance of 
ITPs based on the KSHCP. The Service and the DLNR are proposing to 
prepare a joint Federal/State EIS to evaluate the effects of the 
proposed KSHCP and proposed issuance of Federal and State ITPs on the 
human environment. The DLNR's preparation of the draft KSHCP and 
related EIS is based on conditions of an ESA Section 6 HCP Planning and 
Coordination grant awarded to the DLNR in 2009. The joint Federal/State 
EIS will be prepared in compliance with NEPA and Hawaii Revised 
Statutes (HRS) Chapter 343. Although DLNR will have the lead for 
preparing the EIS the Service will be responsible for the scope and 
content of the document for NEPA purposes, and the DLNR will be 
responsible for the scope and content of the document for the purposes 
of satisfying requirements of HRS Chapter 343.
    The EIS will consider the proposed action, (the issuance of Section 
10(a)(1)(B) permits under the ESA), no action (i.e., no permit 
issuance), a reasonable range of other alternatives, and the associated 
impacts of each alternative. A detailed description of the proposed 
action and other alternatives (including no action) will be included in 
the EIS. The range of alternatives developed may vary by the level of 
impacts caused by the proposed activities, their specific locations, 
and the conservation measures involved. Potential alternatives may 
include various methods of minimizing take through modifications of 
existing power lines, structures, and lights; placing power line 
segments underground; implementing design standards for new facilities; 
variations in the scope of covered activities; variations in the 
location, amount and type of conservation including developing and 
implementing various approaches for improving seabird survival and 
breeding success; variations in permit duration; or a combination of 
these elements. We will consider other reasonable alternatives 
recommended during this scoping process in order to develop a full 
range of alternatives.
    The EIS will analyze direct, indirect, and cumulative impacts on 
the ecosystem and other aspects of the human environment including, but 
not limited to, biological resources, land use, air quality, water 
quality, mineral resources, water resources, recreation, cultural and 
archeological resources, visual resources, socioeconomics, and other 
issues that could occur with implementation of the proposed action and 
alternatives. For all potentially significant impacts, the EIS will 
identify avoidance, minimization, and mitigation measures to reduce 
those impacts, where feasible, to a level below significance.
    Review of the EIS will be conducted in accordance with the 
requirements of NEPA (42 U.S.C. 4321), the Council on Environmental 
Quality regulations (40 CFR 1500-1508), the Administrative Procedure 
Act (5 U.S.C. 551 et seq.), other applicable regulations, and the 
Service's procedures for compliance with those regulations. This notice 
is being furnished in accordance with 40 CFR 1501.7 to obtain 
suggestions and information from other agencies and the public on the 
scope of issues and alternatives to be addressed in the EIS. The 
primary purpose of the scoping process is to identify important issues 
and alternatives related to the proposed action.
    We request comments, suggestions, and data from all interested 
parties to ensure that a reasonable range of alternatives is presented 
and that all potentially significant issues are identified in the EIS. 
We will fully consider all comments received during the comment period. 
Comments and materials we receive will become part of the public record 
and will be available for public inspection, by appointment, during 
regular business hours. Before including your address, phone number, e-
mail address, or other personal identifying information in your 
comment, you should be aware that your entire comment--including your 
personal identifying information--may be made publicly available at any 
time. While you can ask us in your comment to withhold your personal 
identifying information from public review, we cannot guarantee that we 
will be able to do so.

    Dated: October 15, 2010.
Richard Hannan,
Deputy Regional Director.
[FR Doc. 2010-28272 Filed 11-8-10; 8:45 am]