[Federal Register: March 5, 2010 (Volume 75, Number 43)]
[Page 10305-10307]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R2-ES-2009-N278; 20124-1112-0000-F2]

Environmental Impact Statement and Habitat Conservation Plan for 
the Incidental Take of Seven Federally Listed Species by the Edwards 
Aquifer Recovery Implementation Program

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent to prepare a draft environmental impact 
statement and draft habitat conservation plan; announcement of public 
scoping meetings; and request for comments.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), advise the 
public that we intend to prepare a draft Environmental Impact Statement 
(EIS) to evaluate the impacts of, and alternatives to, the proposed 
issuance of an Endangered Species Act of 1973, as amended (Act), 
section 10(a)(1)(B) permit to one or more members of the Edwards 
Aquifer Recovery Implementation Program (the ``Applicant(s)'') for 
incidental take of seven Federally listed species from activities 
associated with management and use of the Edwards Aquifer. The 
Applicant may include, among others, the Edwards Aquifer Authority 

DATES: Written comments on alternatives and issues to be addressed in 
the draft EIS must be received by close of business on June 3, 2010. 
Public scoping meetings will be held at seven locations throughout 
South Central and South Texas. Public meetings will be held between 6 
p.m. and 8 p.m. Exact meeting locations and times will be noticed 
within 2 weeks prior to each event in local newspapers and at the 
Austin Ecological Services Office Web site, http://www.fws.gov/

ADDRESSES: Send written comments by mail to Mr. Adam Zerrenner, Field

[[Page 10306]]

Supervisor, Austin Ecological Services Field Office, 10711 Burnett 
Road, Suite 200, Austin, TX 78758-4460; telephone 512/490-0057; 
facsimile 512/490-0974; or e-mail luela_roberts@fws.gov. Note that 
your information request or comments are in regards to the Edwards 
Aquifer Recovery Implementation Programs.

FOR FURTHER INFORMATION CONTACT: Mr. Adam Zerrenner, Field Supervisor, 
Austin Ecological Services Field Office, 10711 Burnett Road, Suite 200, 
Austin, TX 78758-4460; telephone 512/490-0057; facsimile 512/490-0974; 
or e-mail luela_roberts@fws.gov.

SUPPLEMENTARY INFORMATION: This notice is published in compliance with 
the National Environmental Policy Act (NEPA) of 1969, as amended (42 
U.S.C. 4321 et seq.), and its implementing regulations (40 CFR 1506.6) 
and section 10(c) of the Endangered Species Act of 1973, as amended 
(Act; 16 U.S.C. 1531 et seq.). The Service intends to gather the 
information necessary to determine impacts and alternatives to support 
a decision regarding the potential issuance of an incidental take 
permit to the Applicant(s), and the implementation of the supporting 
draft Habitat Conservation Plan (HCP).
    The Edwards Aquifer Recovery Implementation Program (EARIP) is a 
collaborative, consensus-based stakeholder process to protect and 
contribute to the recovery of the Federally listed species associated 
with the San Marcos and Comal Springs, while also protecting the 
Edwards Aquifer (also referred to as the Aquifer) as a water supply 
source. The EARIP consists of a diverse group of regional stakeholders. 
The stakeholders that have executed a Memorandum of Agreement with the 
Service regarding participation in the EARIP include: Aquifer Guardian 
in Urban Areas, Alamo Cement Company, Bexar County, Bexar Metropolitan 
Water District, Carol G. Patterson, City of Garden Ridge, City of New 
Braunfels, City of San Marcos, City of Victoria, Comal County, CPS 
Energy, Dow Chemical, East Medina Special Utility District, EAA, 
Gilleland Farms, Greater Edwards Aquifer Alliance, Greater San Antonio 
Chamber of Commerce, Guadalupe Basin Coalition, Guadalupe-Blanco River 
Authority, Guadalupe County Farm Bureau, John M. Donahue, PhD, Larry 
Hoffman, Mary Q. Kelly, Nueces River Authority, New Braunfels 
Utilities, Preserve Lake Dunlap Association, Regional Clean Air and 
Water Association, San Antonio River Authority, San Antonio Water 
System, San Marcos River Foundation, South Central Texas Water Advisory 
Committee, South Texas Farm and Ranch Club, Texas Bass Federation, 
Texas Commission on Environmental Quality, Texas Department of 
Agriculture, Texas Living Waters Project, Texas Parks and Wildlife 
Department, Texas Water Development Board, and Texas Wildlife 
    We also announce plans for a series of public scoping meetings 
located throughout the region served by the EAA and affected by the 
management of the Edwards Aquifer area and a public comment period.
    The Service intends to prepare a draft EIS to evaluate the impacts 
of, and alternatives to, the proposed issuance of an incidental take 
permit under the Act to the Applicant(s). The Applicant(s) proposes to 
apply for an incidental take permit through development and 
implementation of an HCP. The proposed HCP will include measures 
necessary to minimize and mitigate the impacts to the maximum extent 
practicable of potential proposed taking of Federally listed species 
and the habitats upon which they depend by the management and use of 
the Edwards Aquifer and the areas associated with the Comal and San 
Marcos springs.


    Section 9 of the Act prohibits ``taking'' of fish and wildlife 
species listed as endangered or threatened under section 4 of the Act. 
Under the Act, the term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or attempt to engage in 
any such conduct. The term ``harm'' is defined in the regulations as 
significant habitat modification or degradation that results in death 
or injury to listed species by significantly impairing essential 
behavioral patterns, including breeding, feeding, or sheltering (50 CFR 
17.3). The term ``harass'' is defined in the regulations as actions 
that create the likelihood of injury to listed species to such an 
extent as to significantly disrupt normal behavioral patterns which 
include, but are not limited to, breeding, feeding, or sheltering (50 
CFR 17.3). However, the Service may, under specified circumstances, 
issue permits that allow the take of Federally listed fish and 
wildlife, provided that the take occurs incidental to, but not the 
purpose of, an otherwise lawful activity. Regulations governing permits 
for endangered and threatened species are at 50 CFR 17.22 and 17.32, 
    Section 10(a)(1)(B) of the Act contains provisions for issuing such 
incidental take permits to non-Federal entities for the take of 
endangered and threatened species, provided the following criteria are 
met: (1) The taking will be incidental; (2) The applicant will, to the 
maximum extent practicable, minimize and mitigate the impact of such 
taking; (3) The applicant will develop a draft HCP and ensure that 
adequate funding for the plan will be provided; (4) The taking will not 
appreciably reduce the likelihood of the survival and recovery of the 
species in the wild; and (5) The applicant will carry out any other 
measures that we may require as being necessary or appropriate for the 
purposes of the habitat conservation plan.
    Thus, the purpose of issuing a permit is to allow management and 
use of the Edwards Aquifer and the use of areas associated with the 
Comal and San Marcos springs, while preserving protected species and 
their habitat that are dependent on water from the Aquifer. Adoption of 
a multispecies habitat conservation approach, rather than a species-by-
species/project-by-project approach, will reduce the costs of 
implementing species minimization and mitigation measures, and 
eliminate cost and time-consuming efforts associated with processing 
individual incidental take permits for each user of the Edwards 
Aquifer. In addition, the multispecies habitat conservation plan 
approach provides a program including avoidance, minimization and 
mitigation for each species that is coordinated on a landscape level 
and provides increased benefits to the covered species. The Service 
expects that the Applicant(s) will request permit coverage for a period 
of between 20 and 50 years.

Scoping Meetings

    The purpose of the scoping meetings is to provide the public with a 
general understanding of the background of the proposed HCP and 
activities that would be covered by the draft HCP, alternative 
proposals under consideration for the draft EIS, and the Service's role 
and steps to be taken to develop the draft EIS for the draft HCP. The 
meeting format will consist of a one hour open house prior to the 
formal scoping meeting that will provide an opportunity to learn about 
the proposed action, permit area, and species covered. The open house 
will be followed by a formal presentation of the proposed action, 
summary of the NEPA process, and presentation of oral comments from 
meeting participants. A court reporter will be present at each meeting 
and an interpreter will be present when deemed necessary. The primary 
purpose of these meetings and public comment period is to solicit 
suggestions and information on the scope of issues and alternatives to 
consider when drafting

[[Page 10307]]

the EIS. Oral and written comments will be accepted at the meetings. 
Comments can also be submitted to persons listed in the addresses 
section above.
    Once the draft EIS and draft HCP are completed and noticed for 
review, there will be additional opportunity for public comment on the 
content of these documents through an additional public hearing and 
comment period.


    The proposed action presented in the draft EIS will be compared to 
the No-Action alternative. The No-Action alternative represents 
estimated future conditions to which the proposed action's estimated 
future conditions can be compared.

No-Action Alternative

    Under the no action alternative, the management and use of the 
Edwards Aquifer and the use of areas associated with the Comal and San 
Marcos springs would continue regardless of whether a 10(a)(1)(B) 
permit is sought or issued. The Applicant(s), and those potentially 
covered by the permit, would continue to be subject to the take 
prohibition of the ESA. Where potential impacts could not be avoided, 
and where a Federal nexus exists, measures designed to minimize and 
mitigate for the impacts would be addressed through individual formal 
or informal consultation with the Service. In the absence of a Federal 
nexus, the Applicant(s), and other parties in the region taking actions 
that would affect the protected species, would potentially need 
individual section 10(a)(1)(B) incidental take permits on a project-by-
project basis if activities might result in the incidental take of a 
Federally protected species within the proposed permit area. This 
project-by-project approach would be more time-consuming, less 
efficient, and could result in an isolated independent mitigation 
approach, which might be less beneficial to the covered species than a 
regional permit.

Proposed Alternative

    The proposed action is the issuance of an incidental take permit 
for the covered species within the proposed permit area for a period of 
between 20 and 50 years. The proposed HCP, which must meet the 
requirements in section 10(a)(2)(A) of the Act by providing measures to 
minimize and mitigate the effects of the potential incidental take of 
covered species to the maximum extent practicable, would be developed 
and implemented by the Applicant(s). This alternative could allow for a 
comprehensive mitigation approach for unavoidable impacts and also 
reduce the permit processing effort for the Service.
    The actions to be covered under the requested incidental take 
permit have yet to be determined. They may include general activities 
associated with the management of the Aquifer, pumping from the 
Aquifer, actions to protect spring flow, land stewardship, and 
recreational activities at and near the San Marcos and Comal springs. 
Construction activities covered for new facilities may include 
construction of recharge structures, well fields, pipelines, and 
related types of activities.
    The Applicant(s) expects to apply for an incidental take permit for 
seven species listed as endangered or threatened within the permit 
area. These species include: Fountain darter (Etheostoma fonticola), 
San Marcos salamander (Eurycea nana), San Marcos gambusia (Gambusia 
georgei), Texas blind salamander (Eurycea rathbuni), Peck's cave 
amphipod (Stygobromus pecki), Comal Springs dryopid beetle (Stygoparnus 
comalensis), and the Comal Springs riffle beetle (Heterelemis 
comalensis). Other species that are currently not listed as threatened 
or endangered may also be covered. The Service will also evaluate 
possible impacts to species not listed here, such as the whooping 
    Counties that may be included in the proposed permit area are those 
counties within the EAA's jurisdiction to manage the Edwards Aquifer 
including all, or portions of, eight counties, including Atascosa, 
Bexar, Caldwell, Comal, Guadalupe, Hays, Medina and Uvalde counties. 
Moreover, EAA's organic legislation establishes a five-mile buffer 
beyond the jurisdictional boundary, reflecting the existence of a 
contributing zone to the aquifer recharge area, in which EAA has 
authority to protect water quality. Consequently, the permit area may 
also include the eight counties within the EAA's jurisdiction proper 
and the portions of the counties that contain the EAA's jurisdictional 
five-mile buffer located over the Edwards Aquifer contributing zone.
    Species not covered by the proposed incidental take permit may also 
be addressed in the draft HCP. These species may include candidate 
species and Federally listed species not likely to be affected by the 
covered activities. The purpose of addressing the additional species is 
to explain why the Applicant believe(s) these species will not be 
impacted by the covered activities.
    Other alternatives considered will also be addressed in the draft 
EIS, including impacts associated with each alternative evaluated will 
be discussed in the draft EIS.

Public Availability of Comments

    Comments we receive become part of the public record associated 
with this action. Before including your address, phone number, e-mail 
address, or other personal identifying information in your comment, you 
should be aware that the 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.

Environmental Review

    The Service will conduct an environmental review to analyze the 
proposed action, as well as other alternatives evaluated and the 
associated impacts of each. The draft EIS will be the basis for the 
impact evaluation for each species covered and the range of 
alternatives to be addressed. The draft EIS is expected to provide 
biological descriptions of the affected species and habitats, as well 
as the effects of the alternatives on other resources such as 
vegetation, wetlands, wildlife, geology and soils, air quality, water 
resources, water quality, cultural resources, land use, recreation, 
water use, local economy, and environmental justice.
    Following completion of the environmental review, the Service will 
publish a notice of availability and a request for comment on the draft 
EIS and the Applicant(s)' permit application, which will include the 
draft HCP. The draft EIS and draft HCP are expected to be completed and 
available to the public in September 2011.

Thomas L. Bauer,
Acting Regional Director, Region 2, Albuquerque, New Mexico.
[FR Doc. 2010-4583 Filed 3-4-10; 8:45 am]