[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Pages 61017-61019]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-24594]



Fish and Wildlife Service

[FWS-R1-ES-2012-N230; FXES11120100000F2-123-FF01E00000]

Draft Habitat Conservation Plan and Application for an Incidental 
Take Permit, Yamhill County, OR

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; receipt of application.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from Yamhill County (County) for an incidental 
take permit (permit) pursuant to the Endangered Species Act of 1973, as 
amended (ESA). The County's application requests a 30-year permit that 
would authorize ``take'' of the endangered Fender's blue butterfly 
incidental to otherwise lawful activities associated with county road 
maintenance and prairie habitat management activities. The application 
includes the County's draft habitat conservation plan (HCP), which 
describes the actions the County will implement to minimize and 
mitigate the impacts of incidental take of the Fender's blue butterfly 
caused by covered activities. We invite public comment on the 
application and draft HCP, and the Service's draft environmental action 
statement (EAS) and preliminary determination that the draft HCP 
qualifies for a categorical exclusion under the National Environmental 
Policy Act (NEPA).

DATES: Written comments on the HCP and categorical exclusion 
determination must be received from interested parties no later than 
November 5, 2012.

ADDRESSES: You may download copies of the draft HCP and EAS and obtain 
additional information on the Internet at http://www.fws.gov/oregonfwo/ToolsForLandowners/HabitatConservationPlans/. You may submit comments 
and requests for documents or more information by any of the following 
     Email: OFWOcomment@fws.gov. Include ``Yamhill County HCP'' 
in the subject line of the message.
     U.S. Mail: State Supervisor, U.S. Fish and Wildlife 
Service, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266.
     In-Person Drop-off, Viewing, or Pickup: Call 503-231-6179 
to make an appointment (necessary for view/pickup only) during regular 
business hours at the above address. Comments and materials received 
will also be available for public inspection by appointment.

FOR FURTHER INFORMATION CONTACT: Richard Szlemp, U.S. Fish and Wildlife 
Service, 2600 SE 98th Avenue, Suite 100, Portland, OR 97266; telephone: 
503-231-6179; facsimile: 503-231-6195.


Background Information

    Section 9 of the ESA and Federal regulations prohibit the 
``taking'' of a species listed as endangered or threatened. Under the 
ESA (16 U.S.C. 1531 et seq.), 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.'' ``Harm'' is defined by the 
Service to include significant habitat modification or degradation that 
results in death or injury of listed species by significantly impairing 
their essential behavioral patterns, including breeding, feeding, and 
    The Service may issue permits, under limited circumstances, to take 
listed species when such taking is incidental to, and not the purpose 
of, otherwise lawful activities. Service regulations governing permits 
for endangered species are found in 50 CFR 17.22, and regulations 
governing permits for threatened species are found in 50 CFR 17.32. 
Section 10(a)(1)(B) of the ESA 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 proposed 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 the Service may require as being necessary or appropriate 
for the purposes of the HCP.
    Although take of listed plant species is not prohibited under the 
ESA, and therefore an incidental take permit to authorize such take is 
not required, listed and non-listed plant species, as well as non-
listed animal species, may be included on a permit if they are treated 
as if they are listed for purposes of meeting the issuance criteria for 
an incidental take permit should the species become listed or the ESA 
is amended to prohibit the take of plants. All listed species included 
in the incidental take permit for which the HCP meets the issuance 
criteria would receive assurances under our ``No Surprises'' 
regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).

Proposed Action

    If all of the issuance criteria described above for an incidental 
take permit are met, the Service will issue a permit with a 30-year 
term to Yamhill County that would authorize incidental take and provide 
regulatory assurances for potential impacts on the Fender's blue 
butterfly (Icaricia icarioides fenderi), which is federally listed as 
endangered. The permit would also provide regulatory assurances to the 
County for impacts caused by HCP-covered activities to the butterfly's 
larval host plant, the Kincaid's lupine (Lupinus oreganus), which is 
federally listed as threatened, should the ESA be amended to include 
take prohibitions for listed plants during the 30-year proposed term of 
the permit and HCP, provided the County's HCP provisions for the lupine 
meet the issuance criteria for a permit. The butterfly and the lupine 
represent the covered species under this HCP. The area that would be 
covered under the permit consists of all rights-of-way (approximately 
4,943 acres) currently managed by the County and County-owned Deer 
Creek Park (30 acres) in Yamhill County, Oregon. Activities that would 
be covered under the HCP include: (1) Work within county road rights-
of-way; (2) habitat restoration, enhancement, and management (including 
monitoring and plant material collection) activities; and (3) emergency 
response activities.
    In the HCP, the county road right-of-way is divided into two 
sections for the purposes of impact analysis: (1) The ``potential 
impact zone,'' which consists of the first 5 feet from the shoulder of 
the road; and (2) the ``no impact zone,'' which typically consists of 
the next remaining 15-foot portion of the right-of-way. While referred 
to as the ``no impact zone,'' there will be some impact to the covered 
species in this area, although they are identified as being mostly 
    Road maintenance activities will occur along 1.02 miles, or 4.90 
acres, of Fender's blue butterfly critical habitat, in units FBB-1 and 
FBB-2. Road maintenance activities will occur along 1.03 miles, or 5.31 
acres, of Kincaid's

[[Page 61018]]

lupine critical habitat, in units KL-2, KL-3, and KL-4. Critical 
habitat for the Kincaid's lupine is mostly coincident with critical 
habitat for the Fender's blue butterfly.
    The analysis in the HCP estimates adverse impacts over the 30-year 
permit term to 3.48 acres of Fender's blue butterfly and Kincaid's 
lupine habitat in the potential impact zone of the right-of-way. The 
analysis in the HCP also estimates that if up to eight additional 
Fender's blue butterfly locations were found along the right-of-way in 
the future, and if all of the area in the impact zone contained nectar 
plants, there could be effects to butterfly and lupine habitat in the 
potential impact zone of up to 20.16 acres. However, because the 
distribution of the Fender's blue butterfly would not be limited to the 
right-of-way, the analysis in the HCP assumes that other nectar sources 
would be available to the butterfly such that the above effects to 
nectar plants would be minor or negligible, and, therefore, incidental 
take of the butterfly would not be likely to occur.
    The HCP includes the following measures to conserve habitat, and to 
avoid and minimize the impacts caused by incidental take of the two 
covered species:
    1. Establishing Special Maintenance Zones where the Fender's blue 
butterfly and the Kincaid's lupine or their designated critical 
habitats are known to occur on lands within the County right-of-way. 
The Special Maintenance Zones total 14.14 miles, with an added 0.31-
mile buffer on each end of those locations where potential habitat for 
the two covered species exists.
    2. Implementing avoidance and minimization measures for roadside 
populations of the covered species within the Special Maintenance 
Zones. The County will mow in the Special Maintenance Zones between 
August 15 and March 1 to reduce potential adverse effects to the 
covered species by avoiding the active butterfly and caterpillar season 
for the Fender's blue butterfly, and the reproductive period for the 
Kincaid's lupine. Tractor mower decks will be set at a minimum of 6 
inches above the ground to reduce potential effects on butterfly 
    3. Managing a portion of the road right-of-way within the Special 
Maintenance Zones to benefit the covered species. Invasive species will 
be removed to reduce competition with native species. A native grass 
seed mixture will be used in the Special Maintenance Zones when 
revegetating disturbed or bare areas.
    4. Restricting normal gravel road maintenance activities (i.e., 
grading and contouring) to the gravel road surface and slope from the 
edge of the shoulder to the bottom of the ditch or to the bottom of the 
roadway fill. This will avoid the area where Kincaid's lupine and 
consequently Fender's blue butterfly most often occur.
    5. Designating and managing conservation areas for the covered 
species on County land, which includes at least 1 acre at Deer Creek 
    Mitigation under the HCP would be directly provided at a 2 to 1 
acreage ratio (i.e., 6.96 acres for 3.48 acres of impact), through 
habitat maintenance, enhancement, and avoidance measures in the ``no 
impact zone'' of the right-of-way and at the County-owned Deer Creek 
Park. Additional benefits to the covered species would occur in the 
``no impact zone'' due to habitat enhancement activities, such as brush 
control, and other actions intended to reduce plant competition with 
native nectar plants, and the Fender's blue butterfly larval host 
plant, Kincaid's lupine.

National Environmental Policy Act Compliance

    As described in our EAS screening form for low-effect HCP 
determinations, we have made the preliminary determination that 
approval of the proposed HCP and issuance of the permit would qualify 
as a categorical exclusion under NEPA (42 U.S.C. 4321 et seq.), as 
provided by Federal regulations (40 CFR part 1500, 5(k), 1507.3(b)(2), 
1508.4), the Department of the Interior Manual (516 DM 2 and 516 DM 8) 
and our Habitat Conservation Planning Handbook (November 1996). Low-
effect HCP determinations are based on the following three criteria: 
(1) Implementation of the proposed plan would result in minor or 
negligible effects on federally listed species and their habitats; (2) 
implementation of the proposed plan would result in minor or negligible 
effects on other environmental values or resources; and (3) impacts of 
the plan, considered together with the impacts of other past, present, 
and reasonably foreseeable similarly situated projects, would not 
result, over time, in cumulative effects to environmental values or 
resources that would be considered significant.

Public Comments

    We request data, comments, new information, or suggestions from the 
public, other concerned governmental agencies, the scientific 
community, Tribes, industry, or any other interested party on this 
notice. We particularly seek comments on the following: (1) Biological 
data or other information regarding the two covered species; (2) 
additional information concerning the range, distribution, population 
size, and population trends of the covered species; (3) current or 
planned activities in the subject area and their possible impacts on 
the covered species; (4) the presence of archeological sites, buildings 
and structures, historic events, sacred and traditional areas, and 
other historic preservation concerns, which are required to be 
considered in project planning by the National Historic Preservation 
Act; and (5) identification of any other environmental issues that 
should be considered with regard to the proposed development and permit 

Public Availability of Comments

    All comments and materials we receive become part of the public 
record associated with this action. Before including your address, 
phone number, email address, or other personal identifying information 
in your comments, 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. Comments and materials we 
receive, as well as supporting documentation we used in preparing the 
EAS, will be available for public inspection by appointment, during 
normal business hours, at the Service's Oregon Fish and Wildlife Office 

Next Steps

    The Service will evaluate the permit application, associated 
documents, and public comments submitted thereon to determine whether 
the permit application meets the requirements of section 10(a)(1)(B) of 
the ESA and NEPA regulations. The final NEPA and permit determinations 
will not be completed until after the end of the 30-day comment period 
and will fully consider all comments received during the comment 
period. If we determine that all requirements are met, we will issue an 
incidental take permit under section 10(a)(1)(B) of the ESA to the 
County for the take of the Fender's blue butterfly, incidental to 
otherwise lawful activities, caused by covered activities.


    We provide this notice pursuant to the requirements of: section 
10(c) of the ESA (16 U.S.C. 1531 et seq.) and its implementing 
regulations (50 CFR

[[Page 61019]]

17.22); and NEPA and its implementing regulations (40 CFR 1506.6).

    Dated: October 1, 2012.
Paul Henson,
State Supervisor, Oregon Fish and Wildlife Office, Pacific Region, U. 
S. Fish and Wildlife Service, Portland, Oregon.
[FR Doc. 2012-24594 Filed 10-4-12; 8:45 am]