[Federal Register Volume 77, Number 229 (Wednesday, November 28, 2012)]
[Pages 71013-71015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28843]



Fish and Wildlife Service

[FWS-R8-ES-2013-N252: FF08ENVD00-FXES11130800000-134]

Proposed Low-Effect Habitat Conservation Plan for the Spring 
Mountain Raceway Expansion Project, Pahrump, Nye County, Nevada

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; receipt of application and request for 


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from Spring Mountain Raceway, LLC (applicant), 
for an incidental take permit under the Endangered Species Act of 1973, 
as amended. The requested 4-year permit would authorize the incidental 
take of the threatened Mojave desert tortoise on 120 acres of habitat 
associated with the construction of a raceway expansion project in 
Pahrump, Nye County, Nevada. The applicant would implement conservation 
measures to avoid, minimize, and mitigate effects of the proposed 
project's covered activities, as described in the applicant's low-
effect habitat conservation plan (HCP).
    We request comments on the permit application, including the HCP, 
and our preliminary determination that the plan qualifies as a ``low-
effect'' habitat conservation plan, eligible for a categorical 
exclusion under the National Environmental Policy Act of 1969, as 
amended (NEPA). We explain the basis for this determination in our 
environmental action statement (EAS), which is also available for 
public review.

DATES: We must receive written comments on or before December 27, 2012.

ADDRESSES: You may download a copy of the HCP, low-effect screening 
form and EAS, and related documents on the Internet at http://www.fws.gov/nevada, or you may request copies of the documents by U.S. 
mail or phone (see

[[Page 71014]]

below). Please address written comments to Edward D. Koch, State 
Supervisor, Nevada Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 1340 Financial Boulevard, Suite 234, Reno, NV 89502. You may 
also send comments by facsimile to 775-861-6301. Please note that your 
information request or comment is in reference to the Low-Effect 
Habitat Conservation Plan for the Spring Mountain Raceway Expansion 
Project, Pahrump, Nye County, Nevada.

FOR FURTHER INFORMATION CONTACT: Jeri Krueger, HCP Coordinator, at the 
above address, or by calling 775-861-6300.


Availability of Documents

    You may obtain copies of the permit application, HCP, and EAS from 
the individual listed under FOR FURTHER INFORMATION CONTACT. Copies of 
these documents are also available for public inspection, by 
appointment, during regular business hours, at the Nevada Fish and 
Wildlife Office, 4701 North Pines Drive, Las Vegas, NV 89130 (see 

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--might 
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.

Background Information

    Section 9 of the Endangered Species Act of 1973, as amended (Act; 
16 U.S.C. 1531 et seq.) and Federal regulations prohibit 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 to 
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 of 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 to carry out 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, under specified circumstances, the Service may issue 
permits that authorize the take of federally listed species, provided 
the take that occurs is 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, respectively.
    Section 10(a)(1)(B) of the Act contains provisions for issuing such 
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 habitat conservation plan 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 
habitat conservation plan.
    The applicant is seeking a permit with a 4-year term for the 
incidental take of the Mojave desert tortoise (Gopherus agassizii). The 
applicant purchased a 120-acre parcel of property, immediately adjacent 
to their existing raceway facility, from the Bureau of Land Management 
(BLM) by modified competitive sealed-bid sale on May 7, 2012. The 
purpose of the acquisition was to expand the raceway by extending the 
racetrack and adding additional facilities on the property. The public 
sale of the parcel was in conformance with the BLM's Las Vegas Resource 
Management Plan (RMP), approved by record of decision on October 5, 
1998. The applicant proposes to carry out construction activities 
associated with the expansion of the raceway on the 120-acre property. 
Construction of the raceway expansion area would include grading and 
leveling of soil and other earth-moving activities; removal of 
vegetation; construction of the new racetrack; construction of 
buildings and parking lots; construction of flood control facilities; 
installation of utilities such as power, phone, Internet, sewer, and 
water lines; and improvement and/or widening of adjacent roadways. The 
entire 120-acre parcel would be developed, resulting in the incidental 
take of all desert tortoises that may occupy the site and the permanent 
loss of 120 acres of desert tortoise habitat.
    To avoid, minimize, and mitigate adverse effects to desert tortoise 
from the construction of the proposed raceway expansion project, the 
applicant proposes to fully implement the conservation measures 
described in the HCP. Conservation measures include: (1) Fencing the 
perimeter of the project area with desert tortoise-proof fencing; (2) 
surveying and removing all desert tortoises from the property by 
qualified desert tortoise biologists prior to the commencement of 
surface disturbing activities; (3) educating construction workers, 
employees, and customers on the status of the tortoise and measures 
that can be implemented to minimize impacts to tortoise; (4) ensuring 
trash and food items are disposed of properly to avoid attracting 
predators; and (5) providing funding in the amount of $550 per acre of 
habitat disturbed to the Desert Tortoise Conservation Center in Clark 
County, Nevada, to support development and implementation of 
conservation and recovery actions for the tortoise under the guidance 
of the Service's Desert Tortoise Recovery Office in Reno, Nevada.


    Our proposed action is approving the applicant's HCP and issuing an 
incidental take permit for the applicant's covered activities. As 
required by the Act, the applicant's HCP considers alternatives to the 
take expected under the proposed action. The HCP considers the 
environmental consequences of one alternative to the proposed action, 
the No-Action Alternative. Under the No-Action Alternative, we would 
not issue a permit, incidental take of desert tortoise associated with 
development of the Spring Mountain Raceway Expansion project would not 
be authorized, and minimization and mitigation measures proposed by the 
applicant would not be implemented. The No-Action Alternative is 
considered infeasible because the property was identified for disposal 
under the BLM's RMP, the applicant purchased the property from the BLM 
for the sole purpose of expanding an existing raceway facility, and 
desert tortoise habitat occurs throughout the 120-acre property; 
therefore, development could not move forward without affecting the 
    Under the Proposed-Action Alternative, we would issue an incidental 
take permit for the applicant's proposed project, which includes the 
covered activities described above. The Proposed-Action

[[Page 71015]]

Alternative would permanently disturb 120 acres of desert tortoise 
habitat that occurs adjacent to an existing raceway and is bounded on 
the south by a highway. To minimize and mitigate for these effects, the 
applicant proposes to implement the conservation measures described 
above and in the applicant's HCP.

National Environmental Policy Act

    As described in our EAS, 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. 4321-4347 et 
seq.), as provided by NEPA implementing regulations in the Code of 
Federal Regulations (40 CFR 1500,5(k), 1507.3(b)(2), 1508.4), by 
Department of Interior regulations (43 CFR 46.205, 46.210, 46.215), and 
by the Department of the Interior Manual (516 DM 3 and 516 DM 8). Our 
EAS determined that the proposed HCP qualifies as a ``low-effect'' 
habitat conservation plan, as defined by our Habitat Conservation 
Planning Handbook (November 1996). Determination of low-effect habitat 
conservation plans is based on the following three criteria: (1) 
Implementation of the proposed HCP would result in minor or negligible 
effects on federally listed, proposed, and candidate species and their 
habitats; (2) implementation of the proposed HCP would result in minor 
or negligible effects on other environmental values or resources; and 
(3) impacts of the HCP, 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. Based upon 
the preliminary determinations in the EAS, we do not intend to prepare 
further NEPA documentation. We will consider public comments when 
making the final determination on whether to prepare an additional NEPA 
document on the proposed action.

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. If you wish to comment on the permit application, EAS, or 
proposed HCP, you may submit your comments to the address listed in the 
ADDRESSES section of this document. If we determine that the 
requirements are met, we will issue an incidental take permit under 
section 10(a)(1)(B) of the Act to the applicant for take of the desert 
tortoise, incidental to otherwise lawful activities in accordance with 
the terms of the permit. We will make the final permit decision no 
sooner than 30 days after the date of this notice, and will fully 
consider all comments we receive during the comment period.


    We provide this notice pursuant to section 10(c) of the Act and the 
NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 

    Dated: November 20, 2012.
Edward D. Koch,
State Supervisor, Nevada Fish and Wildlife Office, Reno, Nevada.
[FR Doc. 2012-28843 Filed 11-27-12; 8:45 am]