[Federal Register: June 10, 2002 (Volume 67, Number 111)]
[Page 39737-39739]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Nye County Habitat Conservation Plan for Lands Conveyed at 
Lathrop Wells, NV

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability


SUMMARY: Nye County, Nevada (Applicant) has applied to the Fish and 
Wildlife Service (Service) for an Incidental Take Permit pursuant to 
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended 
(Act). The proposed permit would authorize take of the federally 
threatened desert tortoise (Gopherus agassizii) incidental to otherwise 
lawful activities associated with the development of 100 acres

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(project site) near the community of Lathrop Wells, Nye County, Nevada.
    We request comments from the public on the permit application, 
which is available for review. The application includes a Low-Effect 
Habitat Conservation Plan (HCP), that fully describes the proposed 
project and the measures that the Applicant would undertake to minimize 
and mitigate anticipated take of the desert tortoise, as required in 
Section 10(a)(2)(B) of the Act.
    We also request comments on our preliminary determination that the 
HCP qualifies as a “low-effect” plan, eligible for a 
categorical exclusion under the National Environmental Policy Act. The 
basis for this determination is discussed in an Environmental Action 
Statement, which is also available for public review.

DATES: Written comments must be received no later than July 10, 2002.

ADDRESSES: Written comments should be addressed to Cynthia Martinez, 
Assistant Field Supervisor, Southern Nevada Field Office, 4701 North 
Torrey Pines Drive, Las Vegas, Nevada 89130. Comments may also be sent 
by facsimile to (702) 515–5231.

FOR FURTHER INFORMATION CONTACT: Michael Burroughs, Wildlife Biologist, 
at the address above, or by calling (702) 515–5230.


Document Availability

    Please contact the above office if you would like copies of the 
application, Habitat Conservation Plan (HCP), and Environmental Action 
Statement. Documents also will be available for review by appointment, 
during normal business hours at the above address.


    Section 9 of the Act and Federal regulation prohibit the 
“take” of fish or wildlife species listed as endangered or 
threatened, respectively. Take of listed fish or wildlife is defined 
under the Act to mean “to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct.” However, the Service, under limited circumstances, 
may issue permits to authorize incidental take; i.e., take that is 
incidental to, and not the purpose of, the carrying out of an otherwise 
lawful activity. Regulations governing incidental take permits for 
threatened and endangered species are found at 50 CFR 17.32 and 17.22, 
respectively. Among other criteria, issuance of such permits must not 
jeopardize the existence of federally listed fish, wildlife, or plants.
    The Applicant proposes to construct the Nevada Space Museum and 
associated facilities, the Science and Technology Center, and other 
commercial uses, on a total of 100 acres of land. In total, 823.22 
acres of land would be transferred from the Bureau of Land Management 
to Nye County pursuant to Public Laws 106–113 and 106–248, 
as amended, and the Recreation and Public Purposes Act of 1926, of 
which a total of 100 acres would be permanently removed with the 
remaining acres to be managed for natural resource values and desert 
tortoise habitat. The project site is immediately north of the 
intersection of U.S. Highway 95 and Nevada State Route 373 in southern 
Nye County, Nevada. The land to be conveyed is irregular in shape with 
the southern boundary delineated by the centerline of U.S. Highway 95 
and existing private development. The western boundary is coincident 
with the western boundary of T. 15 S., R. 49 E., Section 13 and 
property lines of private parcels, and the eastern boundary is 
coincident with the eastern boundary of T. 15 S., R. 50 E., Section 18. 
The northern boundary is coincident with the northern boundary of 
Section 13, the northern boundary of the western half of Section 18, 
and the east-west centerline through the eastern half of Section 18. 
The project site is currently undeveloped, however, existing and 
ongoing disturbances dominate the site. Prevalent vegetation on the 
conveyed lands is creosote bush (Larrea tridentata) and white bursage 
(Ambrosia dumosa).
    In 2000, biologists conducted surveys for desert tortoise on the 
conveyed lands and determined that the area consisted of poor desert 
tortoise habitat. No desert tortoises were observed during the survey, 
however one old desert tortoise burrow and a single scat were found. 
Based on these surveys, the Service concluded that the development of 
the project site would not result in direct take of the desert 
    The Applicant proposes to implement measures to minimize and 
mitigate for the removal of suitable desert tortoise habitat from the 
100-acre project site and impacts to desert tortoise that may occur in 
the area. Specifically, they propose to (1) implement desert tortoise 
awareness and education programs, including signs on the project site; 
(2) provide funding to purchase materials to revegetate off-site desert 
tortoise habitat; and (3) undertake various measures during and after 
development activities at the project site to minimize potential 
impacts to desert tortoise and its habitat.
    The Service's Proposed Action consists of the issuance of an 
incidental take permit and implementation of the HCP, which includes 
measures to minimize and mitigate impacts of the project on the desert 
tortoise. Two alternatives to the taking of desert tortoise under the 
Proposed Action are considered in the HCP. Under the No-Action 
alternative the project site would not be developed and the HCP would 
not be implemented. Without the HCP, the desert tortoise would not 
benefit from mitigation measures in the Proposed Action. Non-native 
plants would continue to invade the project site where disturbance 
currently exists, human disturbances of the area would likely continue, 
and no contribution to the preservation and management of high quality, 
off-site desert tortoise habitat would occur. The No-Action alternative 
would also economically impact Nye County.
    Under the Alternate Site Selection alternative, a different site 
would be used for commercial and community development. This 
alternative is considered infeasible because (1) the lands to be 
conveyed to Nye County have been identified through Public Law 
106–113, as amended; (2) most other lands outside the conveyance 
area have not been identified by the Bureau of Land Management (BLM) 
for disposal; and (3) lands outside the conveyance area that have been 
identified for disposal by the BLM have equal or better quality desert 
tortoise habitat that would be impacted. Implementation of the 
Alternate Site Selection alternative would result in similar impacts as 
the proposed project site, and would not substantially benefit the 
desert tortoise.
    The Service has made a preliminary determination that the HCP 
qualifies as a “low-effect” plan as defined by the Habitat 
Conservation Planning Handbook (November 1996). Our determination that 
a habitat conservation plan qualifies as a low-effect plan is based on 
the following three criteria: (1) Implementation of the plan would 
result in minor or negligible effects on federally listed, proposed, 
and candidate species and their habitats; (2) implementation of the 
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 which would be considered 
significant. As more fully explained in our Environmental Action 
Statement, the

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Applicant's proposal to construct the museum and technology center 
qualifies as a “low-effect” plan for the following reasons:
    1. Approval of the HCP would result in minor or negligible effects 
on the desert tortoise and its habitat. The Service does not anticipate 
significant direct or cumulative effects to the desert tortoise 
resulting from development of the project site.
    2. Approval of the HCP would not have adverse effects on unique 
geographic, historic or cultural sites, or involve unique or unknown 
environmental risks.
    3. Approval of the HCP would not result in any cumulative or growth 
inducing impacts and, therefore, would not result in significant 
adverse effects on public health or safety.
    4. The project does not require compliance with Executive Order 
11988 (Floodplain Management), Executive Order 11990 (Protection of 
Wetlands), or the Fish and Wildlife Coordination Act, nor does it 
threaten to violate any Federal, State, local or tribal laws.
    5. Approval of the HCP would not establish a precedent for future 
actions or represent a decision in principle about future actions with 
potentially significant environmental effects.
    The Service therefore has made a preliminary determination that 
approval of the HCP qualifies as a categorical exclusion under the 
National Environmental Policy Act, as provided by the Department of the 
Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). Based 
upon this preliminary determination, we do not intend to prepare 
further National Environmental Policy Act documentation. The Service 
will consider public comments in making its final determination on 
whether to prepare such additional documentation.
    The Service provides this notice pursuant to section 10(c) of the 
Endangered Species Act. We will evaluate the permit application, the 
HCP, and comments submitted thereon to determine whether the 
application meets the requirements of section 10 (a) of the Act. If the 
requirements are met, the Service will issue a permit to Nye County. We 
will make the final permit decision no sooner than 30 days from the 
date of this notice.

    Dated: May 31, 2002.
D. Kenneth McDermond,
Deputy Manager, California/Nevada Operations Office, Sacramento, 
[FR Doc. 02–14397 Filed 6–7–02; 8:45 am]