[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Notices]
[Pages 45437-45441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15037]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R8-ES-2023-0084; FXES11140800000-223-FF08ECAR00]
Notice of Intent To Prepare a Draft Environmental Impact
Statement for the Desert Tortoise General Conservation Plan, CA
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of intent to prepare an environmental impact statement;
notice of public scoping meetings; request for comments.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), provide this
notice to open a public scoping period and announce public scoping
meetings in accordance with the National Environmental Policy Act. We
intend to prepare an environmental impact statement (EIS) to evaluate
the impacts on the human environment related to our proposal to
implement a general conservation plan for the federally threatened
desert tortoise (Gopherus agassizii) in California, pursuant to the
Endangered Species Act.
[[Page 45438]]
DATES:
Submitting Comments: We must receive any written comments on or
before August 31, 2023.
Public Meetings: The Service will hold three public meetings during
the scoping period to attempt to allow all interested parties to
participate.
In-Person Public Meeting: We will hold an in-person public
meeting on August 10, 2023, from 6 p.m. to 8 p.m. Pacific Time in
Victorville, California, at the Hilton Garden Inn (12603 Mariposa Road,
Victorville, CA 92395).
Virtual Meetings: We will hold virtual meetings on July
25, 2023, from 10 a.m. to 12 p.m., and on July 27, 2023, from 6 p.m. to
8 p.m. Pacific Time. More information about the public meetings is
available at https://www.virtualpublicmeeting.com/usfws-desert-tortoise-gcp-eis.
ADDRESSES:
Obtaining Documents: To assist the public in evaluating the
Service's proposed action, which would be approval of the general
conservation plan (GCP), we have provided a preliminary draft GCP for
review. You may obtain copies of the draft GCP online in Docket No.
FWS-R8-ES-2023-0084 at https://www.regulations.gov. Public comments
will also be available at https://www.regulations.gov.
Submitting Written Comments: You may submit your written comments
using one of the following methods:
Online: http://www.regulations.gov. Follow the
instructions for submitting comments on Docket No. FWS-R8-ES-2023-0084.
U.S. Mail: Public Comments Processing, Attn: Docket No.
FWS-R8-ES-2023-0084; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041-3803.
For more information, see Public Availability of Comments under
SUPPLEMENTARY INFORMATION.
Public Meetings: A link and access instructions to the public
meetings will be posted to https://www.fws.gov/office/carlsbad-fish-and-wildlife at least 1 week prior to the public meeting dates.
FOR FURTHER INFORMATION CONTACT: Ray Bransfield, Fish and Wildlife
Biologist, by email at [email protected] or via phone at (805)
677-3398. Individuals in the United States who are deaf, deafblind,
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION: We provide this notice of intent for
preparing an environmental impact statement (EIS), opening a public
scoping period, and announcing public scoping meetings in accordance
with requirements of the National Environmental Policy Act (NEPA; 42
U.S.C. 4321 et seq.) and its implementing regulations. The Service will
serve as the lead Federal agency for purposes of NEPA. We intend to
prepare an EIS to evaluate the impacts on the human environment related
to our proposal to approve a general conservation plan for the desert
tortoise in California, pursuant to the Endangered Species Act of 1973,
as amended (ESA; 16 U.S.C. 1531 et seq.) The U.S. Bureau of Land
Management (Bureau) will serve as a cooperating agency under NEPA, as
some lands under consideration for mitigation activities are
administered by the Bureau.
The primary purpose of the scoping process is for the public and
other parties to assist in developing the draft EIS by identifying
important issues and alternatives that should be considered. This
scoping notice was prepared pursuant to the updated regulations
implementing NEPA, issued by the Council on Environmental Quality on
July 16, 2020 (85 FR 43304).
Purpose and Need for the Proposed Action
The purpose of the proposed GCP is to provide a mechanism by which
the Service can increase efficiency and standardize compliance with
section 10(a)(1)(B) of the ESA for activities on certain non-Federal
lands in the plan area that have the potential to incidentally take
desert tortoises. Instead of a lengthy and complicated processing of
individual incidental take permit applications and associated habitat
conservation plans for applicants, the proposed approval and
implementation of the GCP would allow the Service to substantially
reduce the time and effort needed to issue incidental take permits that
meet the parameters established in the GCP while ensuring project
mitigation contributes to long-term recovery for desert tortoise. The
GCP would require use of minimization measures that have proven
effective over time in reducing mortality of desert tortoises during
various types of activities, including the translocation of desert
tortoises from non-Federal project sites to conservation areas. The GCP
would also direct required mitigation to fund or implement recommended
actions in the revised recovery plan for the desert tortoise (76 FR
53482) and additional actions to ensure the mitigation contributes to
the species' long-term recovery.
Section 10 of the ESA directs the Service to issue incidental take
permits to non-Federal entities for take of endangered and threatened
species when the permit applicant satisfies the criteria in section
10(a)(2)(B). Processing individual incidental take permits requires
Service staff to conduct lengthy reviews of applicant-prepared
minimization and mitigation measures for each individual project, to
prepare appropriate documentation compliant with NEPA, and to conduct
intra-Service consultation and coordination. The Service and potential
permit applicants would greatly benefit if the Service is able to (1)
streamline this process for desert tortoise incidental take permits,
(2) provide specific direction to applicants to incorporate the most
current measures to minimize the take of desert tortoises into their
applications, and (3) better incorporate mitigation from incidental
take permits into a comprehensive strategy that contributes to recovery
of the desert tortoise.
The GCP would fulfill a need for better conservation of the desert
tortoise within the California desert in a more comprehensive and
consistent manner. It would also substantially reduce the time and
effort expended by Service staff in processing individual incidental
take permits while improving the appropriate standards for protection
of desert tortoises in development areas and furthering the species'
recovery in conservation areas.
Preliminary Proposed Action and Alternatives
As required by 40 CFR 1501.9(d)(2), we are providing a preliminary
description of the proposed action, which is the Service's approval of
a GCP for the desert tortoise in California. If we approve use of a
GCP, project proponents within the GCP's permit areas would be able to
apply for incidental take permits for the desert tortoise in a
streamlined manner. The Service would only issue incidental take
permits under the GCP if the individual applications met its issuance
criteria, which would provide clear guidance on how to best minimize,
mitigate, and monitor the effects of incidental take on desert
tortoises. We will prepare a final EIS prior to deciding on whether to
approve a GCP.
The EIS will include a reasonable range of action alternatives and
a no-action alternative. The action alternatives will likely include
[[Page 45439]]
variations in the duration of the general conservation plan, the size
and locations of permit and mitigation areas, potential translocation
areas for desert tortoises found on project sites, and the types of
effectiveness monitoring. At this time, the Service proposes to approve
a GCP with a duration of 10 years, with an option to renew it if it is
meeting expectations, covering a broad range of development activities,
translocating desert tortoises into conservation areas to augment
depleted populations, and implementing recovery actions within the
broad desert tortoise conservation areas described in the recovery
plan. Regarding the duration of the GCP, we may consider longer or
shorter alternatives. We will consider alternatives to translocating
desert tortoises long distances to conservation areas, such as moving
them to parcels that are closer to the sites of development. We will
also evaluate whether to include or exclude specific areas outside of
conservation areas where the GCP would be available and whether to
include or exclude specific areas within conservation areas to use for
mitigation. Under the no-action alternative, the Service would not
approve the GCP and would not implement a streamlined process for
considering incidental take permits.
Background
Endangered Species Act
Section 9 of the ESA prohibits the ``take'' of fish and wildlife
species listed as endangered under section 4 (16 U.S.C. 1538 and 16
U.S.C. 1533, respectively). The Endangered Species Act's implementing
regulations extend, under certain circumstances, the prohibition of
take to threatened species (50 CFR 17.31). Under section 3 of the ESA,
the term ``take'' means to ``harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect, or attempt to engage in any such
conduct'' (16 U.S.C. 1532(19)). The regulations define ``harm'' as ``an
act which actually kills or injures wildlife. Such act may include
significant habitat modification or degradation where it actually kills
or injures wildlife by significantly impairing essential behavioral
patterns, including breeding, feeding, or sheltering'' (50 CFR 17.3).
Under section 10(a)(1)(B) of the ESA, the Service may issue permits
to authorize incidental take of listed fish and wildlife species. The
implementing regulations for incidental take permits define
``incidental taking'' as ``any taking otherwise prohibited, if such
taking is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity'' (50 CFR 17.3). Section 10(a)(2)(B) of the
ESA lists the criteria for the Service's issuance of incidental take
permits to non-Federal entities. If the applicant meets the following
criteria, the Service must issue an incidental take permit:
1. The taking will be incidental;
2. The applicant will, to the maximum extent practicable, minimize
and mitigate the impacts of such taking;
3. The applicant will 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
GCP in support of issuance of an incidental take permit.
Desert Tortoise General Conservation Plan
The Service proposes to approve a GCP that provides specific
direction regarding how to best minimize, mitigate, and monitor the
effects of incidental take to applicants seeking ESA section
10(a)(1)(B) permits for the desert tortoise within a defined permit
area. Under standard practices, applicants are responsible for
developing the ``conservation plan'' required by section 10(a)(2)(A) of
the ESA; the development of the conservation plans and iterative
reviews require substantial time and effort, both for the applicant and
Service staff. The Service must then prepare a NEPA document for public
review, address any comments received from the public, conduct an
internal consultation pursuant to section 7(a)(2) of the ESA, and
conclude the NEPA process before reaching a decision on whether to
issue the incidental take permit.
In almost every incidental take permit that the Service has
processed since the listing of the desert tortoise in 1990 (55 FR
12178), the applicant and Service agreed on the most appropriate means
of minimizing, mitigating, and monitoring the effects of take on desert
tortoises soon after the applicant contacted us. However, the standard
practices described in the previous paragraph generally require at
least 12 to 24 months to complete. A streamlined approach to the
process, with more direction upfront from Service staff, would result
in more effective means of minimizing and mitigating impacts to desert
tortoises and allow staff to expend more time on implementing recovery
work, with overall concomitant positive effects on the recovery of the
species. Such a process would also provide a higher degree of certainty
to applicants.
Covered Activities
We propose to cover commercial, agricultural, residential,
industrial, and infrastructure development within the planning area
that a Federal agency does not fund, authorize, or carry out. The GCP
would also cover the operations and maintenance of existing facilities,
such as utilities' transmission and distribution lines. The Service
intends the covered activities to be inclusive; that is, we will
consider for coverage any future activity that has the same general
effects on the desert tortoise as those described in this GCP. The
Service will retain the right to recommend that the non-Federal entity
pursue an individual incidental take permit if the scope of the
proposed activity is likely to affect desert tortoises in a manner that
we have not considered in this GCP.
Additionally, the GCP would cover activities along existing rights
of way in the California desert where the Federal agency no longer has
discretionary authority; consequently, interagency consultation,
pursuant to section 7(a)(2) of the ESA, does not apply in these areas.
The GCP would apply to such rights of way that lie within conservation
areas. Within conservation areas, the GCP would be available only for
projects that intended to improve the safety and functionality of the
existing right of way; the Service will not consider its use
appropriate if the proposed project changes the basic function of the
existing right of way.
Plan Areas
We propose to define ``permit areas'' and ``mitigation areas'' in
the GCP. The permit area would be the area where incidental take
permits deriving from the GCP would be available to applicants. Non-
Federal lands outside of conservation areas in southern Inyo County,
eastern Kern County, northern Los Angeles County, the desert portion of
San Bernardino County, eastern Riverside County, and portions of
Imperial County comprise the permit areas. As discussed in the previous
section, the GCP would also apply to existing non-Federal rights of way
across Federal lands under certain circumstances.
The required mitigation for issuance of an incidental take permit
would occur within the boundaries of mitigation areas. Mitigation areas
would generally include ``desert tortoise conservation areas,'' which
the recovery
[[Page 45440]]
plan for the desert tortoise describes as Bureau of Land Management
conservation lands (California Desert National Conservation Lands and
areas of critical environmental concern) as identified in the
California Desert Conservation Area Plan, as amended by the Desert
Renewable Energy Conservation Plan, National Park Service lands, and
other conservation areas or easements managed for desert tortoises.
Covered Species
The Mojave population of desert tortoise is the only species
proposed for coverage under the GCP. The Service listed the Mojave
population of desert tortoise (all desert tortoises north and west of
the Colorado River in Arizona, Utah, Nevada, and California) as
threatened on April 2, 1990. We designated critical habitat for the
desert tortoise in California, Nevada, Arizona, and Utah in a final
rule published February 8, 1994 (59 FR 5820).
The GCP includes an analysis of impacts to the desert tortoise that
are likely to result from covered activities. We anticipate that
incidental take permits under the GCP would result in the take of few
desert tortoises. We have reached that conclusion because, since the
listing of the desert tortoise in 1990, we have issued 14 incidental
take permits for the desert tortoise in California that have resulted
in the translocation of approximately 43 desert tortoises. We are
unaware of any desert tortoises that died during permitted activities.
Additionally, we have limited the GCP's permit area to portions of
the desert where conservation of the desert tortoise in the long term
is infeasible, with the exception of non-Federal rights of way that
comprise a negligible portion of plan area. Based on analysis in the
original and revised recovery plans for the desert tortoise, we
consider recovery of the desert tortoise to be infeasible in the permit
area because most of the land there is in private ownership; it would
be practically and financially impossible to secure and manage habitat
in that area, which also frequently includes rural development and its
associated impacts to desert tortoises.
We have not proposed a numerical limit on the number of desert
tortoises that use of the GCP may affect. Instead, we would evaluate
the survey results of individual applicants for incidental take permits
and authorize an appropriate amount of incidental take based on the
survey results and the nature of the proposed project. We would track
the aggregate amount of incidental take and make that information
available to the public.
The biological goals of the GCP focus on minimizing the amount of
take of desert tortoises and maximizing the conservation benefits of
the mitigation that results from the issuance of incidental take
permits. To minimize the number of desert tortoises that proposed
actions would kill or injure, the Service would require permittees to
implement standard methods, such as fencing work areas, surveying for
individuals within project areas, translocating desert tortoises to
suitable off-site habitat, implementing worker education programs,
implementing measures to manage predators on site, and contributing to
the regional management program for common ravens (Corvus corax). Over
the course of implementation of the GCP, the Service would update
protocols for various protective measures, such as testing for disease,
as new information and improved methods become available.
To mitigate the effects of take and maximize conservation benefits
for desert tortoises, the GCP would provide applicants with several
options, such as land acquisition (securing and conserving habitat),
non-acquisition (restoration and enhancement of habitat), purchase of
mitigation bank credits, other actions needed to protect and conserve
desert tortoises, or a combination of these activities. The Service
would require that all mitigation occur within the conservation areas
as defined in the recovery plan for the desert tortoise and mapped in
the GCP that will contribute to long term conservation of desert
tortoise.
Summary of Anticipated Impacts
The draft EIS will identify and describe the effects of the GCP
alternative and a range of other reasonable alternatives on the human
environment that are reasonably foreseeable and have a reasonably close
causal relationship to the proposed action. This includes effects that
occur at the same time and place as the proposed action or alternatives
and/or effects that are later in time or farther removed in distance
from the proposed action or alternatives. Expected impacts include, but
are not limited to, positive and negative impacts to the desert
tortoise, geology and soils, air quality, water resources, other
biological resources, health and safety, land use, recreation,
aesthetics, historical and cultural resources, transportation, public
services and utilities, and socioeconomics. We will analyze the effects
of these expected impacts in the draft EIS.
The analysis will consider the adequacy of each alternative to
maintain or enhance the status of the desert tortoise in light of the
expected effects and other best available information. Impacts on air
quality, water resources, and other biological resources, such as fish,
wildlife, and the desert ecosystem, will be evaluated at a broad,
programmatic level of detail and are expected to include incremental
negative impacts from development that are minimized and or mitigated
at the landscape level through application of applicable law, including
local and State regulations. Under each alternative, significant
impacts to water resources, State-protected species, and ecosystems
would typically be avoided or minimized by the local agency's
compliance with local and State regulations governing development. We
expect that most, if not all, of the projects that applicants may
propose to cover under the GCP would undergo additional public review
under the California Environmental Quality Act.
Schedule for the Decision-Making Process
The Service will conduct an environmental review to analyze the
effects of the proposed action, along with a range of other reasonable
alternatives in the draft EIS. Following completion of the
environmental review, the Service will publish a notice of availability
and request for public comments on the draft EIS and the revised draft
GCP. The Service expects to make the draft EIS and revised draft GCP
available to the public in summer 2023. After public review and
comment, we will review any comments we receive and any other new
information to determine whether to approve the GCP for use. We will
also evaluate whether implementation of the GCP would comply with
section 7(a)(2) of the ESA. The Service expects to make the final EIS
and final GCP available to the public in late 2023. At least 30 days
after the final EIS is available, the Service will complete the record
of decision in accordance with applicable timeframes established in 40
CFR 1506.11.
Public Scoping Process
The issuance of this notice of intent provides an opportunity for
public involvement in the scoping process to guide the development of
the EIS.
To attempt to allow all interested parties to participate, the
Service will hold three public meetings during the scoping period, both
in-person and
[[Page 45441]]
virtual. See DATES and ADDRESSES for the dates and times of the public
scoping meetings. The public scoping meetings will provide the Service
an opportunity to present information pertinent to the GCP and for the
public to ask questions on the scope of issues and alternatives we
should consider when preparing the draft EIS and to discuss ideas with
Service staff. We will not record comments at the public meetings; we
will accept scoping comments only in writing, by the methods listed in
ADDRESSES.
Reasonable Accommodations
Persons needing reasonable accommodations to attend and participate
in the public scoping meetings should contact the Service's Palm
Springs Fish and Wildlife Office, using one of the methods listed in
FOR FURTHER INFORMATION CONTACT as soon as possible. To allow
sufficient time to process requests, please make contact no later than
1 week before the desired public meeting. Information regarding this
proposed action is available in alternative formats upon request.
Request for Identification of Potential Alternatives, Information, and
Analyses Relevant to the Proposed Actions
We request data, comments, views, arguments, new information,
analysis, new alternatives, or suggestions on the proposed action from
the public; affected Federal, State, Tribal, and local governments,
agencies, and offices; the scientific community; industry; or any other
interested party. We will consider these comments in developing the
draft EIS. Specifically, we seek:
1. Biological information, analysis and relevant data concerning
the desert tortoise and other wildlife;
2. Potential effects that the GCP could have on the desert tortoise
and its associated ecological communities or habitats;
3. Potential effects that the GCP could have on other aspects of
the human environment, including ecological, aesthetic, historic,
cultural, economic, social, environmental justice, or health effects;
4. Other possible reasonable alternatives to the proposed action
that the Service should consider, including additional or alternative
avoidance, minimization, and mitigation measures;
5. The presence of historic properties--including archaeological
sites, buildings and structures, historic events, sacred and
traditional areas, and other historic preservation concerns--in the
proposed permit area, which are required to be considered in project
planning by the National Historic Preservation Act;
6. Information on other current or planned activities in, or in the
vicinity of, the plan area and their possible impacts on the desert
tortoise, including any connected actions that are closely related and
should be discussed in the same draft EIS; and
7. Other information relevant to the GCP and its impacts on the
human environment.
Once the Service has prepared the draft EIS, we will provide
further opportunity for comment on the GCP through an additional public
comment period.
Public Availability of Comments
You may submit your comments and materials by one of the methods
listed in ADDRESSES. 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. All submissions from organizations or businesses, and
from individuals identifying themselves as representatives or officials
of organizations or businesses, will be made available for public
disclosure in their entirety.
Comments and materials we receive and supporting documentation we
use in preparing the draft EIS will be available for public inspection
online in Docket No. FWS-R8-ES-2023-0084 at https://www.regulations.gov
(see FOR FURTHER INFORMATION CONTACT).
Decision Maker and Nature of Decision To Be Made
The decision maker is the Assistant Regional Director for
Ecological Services (ARD) of the Pacific Southwest Region of the
Service. If, after publication of the record of decision, we determine
that all requirements are met for approval of incidental take permits
under the GCP, the ARD will issue a decision on whether to approve the
GCP.
Authority
We provide this notice in accordance with the requirements of
section 10(c) of the Endangered Species Act of 1973 (16 U.S.C. 1539(c))
and its implementing regulations (50 CFR 17.22) and National
Environmental Policy Act regulations pertaining to the publication of a
notice of intent to issue an environmental impact statement (40 CFR
1501.9(d)).
Michael J. Senn,
Assistant Regional Director--Ecological Services, Pacific Southwest
Region, U.S. Fish and Wildlife Service, Sacramento, California.
[FR Doc. 2023-15037 Filed 7-14-23; 8:45 am]
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