[Federal Register: January 2, 2002 (Volume 67, Number 1)]
[Page 98-99]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Incidental Take Permit and Habitat Conservation Plan for 
Cyanotech Corporation

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Cyanotech Corporation (Cyanotech) 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 Service proposes to issue a 3-year permit to Cyanotech that 
would authorize take (harm, harassment, death or injury) of the 
endangered Hawaiian stilt, (Himantopus mexicanus knudseni) incidental 
to otherwise lawful activities. Such take would occur as a result of 
ongoing operation and maintenance of Cyanotech Corporation's 
acquaculture facility at Keahole Point on the island of Hawaii.
    We request comments from the public on the permit application which 
includes a Habitat Conservation Plan (HCP) for the Hawaiian stilt. We 
also request comments on our preliminary determination that the 
Cyanotech HCP qualifies as a ``low-effect'' habitat conservation plan, 
eligible for a categorical exclusion under the National Environmental 
Policy Act.

DATES: Written comments should be received on or before February 1, 

ADDRESSES: Comments should be addressed to Mr. Paul Henson, Field 
Supervisor, U.S. Fish and Wildlife Service, P.O. Box 50088, Honolulu, 
Hawaii 96850; facsimile (808) 541-3470.

FOR FURTHER INFORMATION CONTACT: Ms. Gina Shultz, Supervisory Fish and 
Wildlife Biologist, at the above address or telephone (808) 541-3441.


Document Availability

    Cyanotech's permit application and associated HCP, and the 
Service's Environmental Action Statement, are available for public 
review. The HCP describes the existing conditions at the Cyanotech 
aquaculture facility and the proposed measures that Cyanotech would 
undertake to minimize and mitigate take of the Hawaiian stilt. The 
Environmental Action Statement describes the basis for the Service's 
preliminary determination that the Cyanotech HCP qualifies as a low 
effect plan eligible for a categorical exclusion from further 
documentation under the National Environmental Policy Act.
    You may obtain copies of the documents from review by contacting 
the office named above. You also may make an appointment to view the 
documents at the above address during normal business hours. All 
comments we receive, including names and addresses, will become part of 
the administrative record and may be released to the public.


    Section 9 of the Act and its implementing regulations prohibit the 
``take'' of threatened or endangered species. Take is defined under the 
Act to include harass, harm, pursue, hunt shoot, wound, kill, trap, 
capture, or collect listed animal species, or attempt to engage in any 
such conduct (16 U.S.C. 1538). Harm includes significant habitat 
modification where it actually kills or injures listed wildlife by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, and sheltering 50 CFR 17.3(c). Under limited 
circumstances the Service may issue permits to take listed species 
incidental to, and not the purpose of, otherwise lawful activities. 
Regulations governing permits for threatened and endangered species are 
found in 50 CFR 17.32 and 50 CFR 17.22, respectively.
    Cyanotech cultivates and harvests microalgae for commercial sale. 
The Cyanotech facility currently occupies approximately 90 acres of 
land and includes a series of man-made ponds or ``raceway ponds'' where 
the microalgae is grown; office and maintenance buildings; and 
laboratory, research, and processing buildings. The nutrient rich ponds 
support high-density invertebrate populations, a primary food source 
for the endangered Hawaiian stilt. Stilts are attracted to and nest 
within and adjacent to the aquaculture facility. Hawaiian stitl chicks 
that hatch at the facility are led by parents stilts to the ponds to 
feed where they are suspected either of drowning in the rapidly flowing 
waters or dying from adverse physiological reactions (e.g., acute 
dehydration) associated with ingestion of the hypersaline, high-

[[Page 99]]

conditions of the alga medium required for production. Cyanotech's 
aquaculture operation thus inadvertently attracts stilts to a man-made 
habitat that is unsuitable for successful stilt reproduction.
    Under the HCP, Cyanotech would minimize incidental take of the 
Hawaiian stilt by implementing deterrence measures designed to 
eliminate stilt foraging and nesting at the Cyanoteck Facility. The 
following non-lethal deterrence measures would be evaluated and may be 
implemented: (1) reduce or eliminate the invertebrate food source, (2) 
reconfigure raceway ponds to make them unattractive to the Hawaiian 
stilt, (3) net ponds to exclude Hawaiian stitl, (4) use biodegradable 
repellents, and (5) implement various hazing methods. Cyanotech will 
mitigate for incidental take of Hawaiian stilt eggs and chicks by 
creating suitable nesting habitat onsite. These measures would ensure 
(1) positive Hawaiian stilt reproductive success, (2) recruitment of 
fledged birds into the overall population, and (3) that the Cyanotech 
facility does not become a reproductive sink for stilts.
    The Service's Proposed Action consists of the issuance of an 
incidental take permit and implementation of the HCP, which includes 
measures to minimize the incidental take of Hawaiian stilt eggs, 
chicks, subadults, and adults, and measures to mitigate any incidental 
take of Hawaiian stilts eggs and chicks at the Cyanotect facility. The 
four alternatives to the proposed alternative considered in the HCP 
are: (1) No Action, (2) Long-term Management Off Site, (3) Haze/Fee, 
and (4) Integrated Management Approach.
    Under the No Action Alternative, no permit would be issued. 
Cyanotech would continue its microalgae operation without an HCP to 
address take of the Hawaiian stilt. Cyanotech did not select this 
option as it would be in violation of Section 9 of the Act.
    Under the Long-term Management Off Site Alternative, Cyanotech 
would contribute funds to create, restore, or enhance habitat for 
Hawaiian stilt at an off site location. This alternative would provide 
mitigation for take of the Hawaiian stilt however, Cyanotech did not 
select this alternative due to the prepetutation of incidental take 
that would be caused by continued foraging and nesting of stilts at the 
Cyanotech facility.
    Under the Haze/Fee Alternative, Cyanotech would haze Hawaiian 
stilts using non-lethal deterrents. This alternative may minimize take, 
however, Cyanotech did not select this alternative because hazing birds 
from a site has not proven effective as a long-term solution and would 
likely result in a long-term commitment of resources without reducing 
stilt numbers at the Cyanotech facility.
    Under the Integrated Management Approach Alternative, Cyanotech 
would implement non-lethal bird deterrence, manage protected nesting 
habitat for 1 year only, and reallocate funds from on-site management 
to an off-site mitigation fund in years 2 and 3. Cyanotech did not 
select this alternative due to the unconditional closure of the on-site 
protected habitat after 1 year and the desire for flexibility provided 
by adaptive management.
    The Service has made a preliminary determination that the Cyanotech 
HCP qualifies as a ``low-effect'' plan as defined by its 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, or 
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 reasonable 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, Cyanotech's HCP for the Hawaiian stilt qualifies as a ``low-
effect'' plan for the following reasons:
    1. Approval of the HCP would result in minor or negligible effects 
on the Hawaiian stilt. The Service does anticipate significant direct 
or cumulative effects to the Hawaiian stilt from Cyanotech's microalgae 
    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 HCP does not require compliance with Executive Order 11998 
(Floodplain Management), Executive Order 11990 (Protection of 
Wetlands), or Fish and Wildlife Coordination Act, nor does it threaten 
or violate a Federal, State, local or tribal law or requirement imposed 
for the protection of the environment.
    5. Approval of the HCP would not establish a precedent for future 
action or represent a decision in principle about future actions with 
potentially significant environmental effects.
    We provide this notice pursuant to section 10(c) of the Act and 
pursuant to implementing regulations for the National Environmental 
Policy Act (40 CFR 1506.6). We will evaluate the permit application, 
HCP, and comments submitted thereon to determine whether the permit 
application meets the requirements of section 10(a) of the Act and 
National Policy Act regulations. If we determine that the requirements 
are met, we will issue a permit under section 10(a)(1)(B) of the Act to 
Cyanotech for take of Hawaiian stilt incidental to otherwise lawful 
activities in accordance with the HCP. We will fully consider all 
comments received during the comment period and will not make our final 
decision until after the end of the 30-day comment period.

    Dated: December 18, 2001.
Rowan W. Gould,
Deputy Regional Director, Fish and Wildlife Service, Portland, Oregon.
[FR Doc. 01-32142 Filed 12-31-01; 8:45 am]