[Federal Register: December 17, 2004 (Volume 69, Number 242)]
[Page 75556-75558]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Bureau of Reclamation


Final Environmental Impact Statement/Environmental Impact Report 
for Proposed Adoption of the Lower Colorado River Multi-Species 
Conservation Program, Final Lower Colorado River Multi-Species Habitat 
Conservation Plan, Final Biological Assessment, Incidental Take Permit 
Application, Draft Implementing Agreement, and Draft Funding and 
Management Agreement

AGENCIES: Fish and Wildlife Service, Bureau of Reclamation, Interior.

ACTION: Notice of availability.


SUMMARY: Pursuant to the National Environmental Policy Act (NEPA), the 
Fish and Wildlife Service (Service) and the Bureau of Reclamation 
(Reclamation) published a Federal Register notice on June 18, 2004 (69 
FR 34185) that informed the public of the availability of the Draft 
Environmental Impact Statement/Draft Environmental Impact Report (DEIS/
DEIR) for the Lower Colorado River Multi-Species Conservation Program 
(LCR MSCP), Application for Section 10 Incidental Take Permit (ITP), 
Draft Lower Colorado River Multi-Species Habitat Conservation Plan 
(HCP), Draft Biological Assessment (BA), and Draft Implementing 
Agreement (IA).
    The notice provided for a 60-day comment period; comments were 
accepted pursuant to the notice through August 18, 2004. The notice 
also advised the public that the Service received an ITP application 
for the LCR MSCP pursuant to section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (Act). The ITP would authorize the LCR 
MSCP permittees' incidental take of the following federally listed and 
candidate species: southwestern willow flycatcher (Empidonax traillii 
extimus) (flycatcher), Yuma clapper rail (Rallus longirostris 
yumanensis) (clapper rail), desert tortoise (Gopherus agassizii) 
(tortoise), bonytail (Gila elegans) (bonytail), humpback chub (Gila 
cypha) (humpback), razorback sucker (Xyrauchen texanus) (razorback), 
yellow-billed cuckoo (Coccyzus americanus) (cuckoo), and relict leopard 
frog (Rana onca) (frog). The ITP would also address incidental take for 
19 other species of animals and plants that are not federally listed or 
candidate species at this time. The proposed take would occur in 
Mohave, La Paz, and Yuma counties, Arizona; San Bernardino, Riverside, 
and Imperial counties, California; and Clark County, Nevada, as a 
result of water storage and delivery, power generation, and other 
associated federal and non-federal water management actions and 
activities on the lower Colorado River from the full pool elevation of 
Lake Mead to the Southerly International Boundary with Mexico.
    A Final HCP, which makes revisions to the Draft HCP submitted as 
part of the application package (Application), has been submitted to 
the Service as required by the Act for consideration of issuance of an 
ITP, pursuant to section 10(a)(1)(B). The HCP provides measures to 
minimize and mitigate the effects of the proposed incidental take of 
listed, candidate, and other species.
    Reclamation, the Service, Bureau of Land Management (BLM), Bureau 
of Indian Affairs (BIA), National Park Service (NPS), and Western Area 
Power Administration (Western), have completed a Final BA, which 
includes an evaluation of the effects of specific ongoing and potential 
future federal actions, including Reclamation's discretionary LCR 
operations and maintenance activities. In addition, the BA addresses 
Reclamation's proposed implementation of the conservation plan and 
conservation measures described in the BA and in the HCP for the 
listed, candidate, and other covered species.
    The Service, Reclamation, and The Metropolitan Water District of 
Southern California, as joint lead agencies, have issued a Final 
Environmental Impact Statement/Final Environmental Impact Report (FEIS/
FEIR) to evaluate the impacts of, and alternatives for, the possible 
issuance of an ITP and the implementation by Reclamation of 
conservation measures described in the BA and the HCP.
    As of the June 18, 2004, Federal Register Notice, a Draft IA that 
represented the positions of the federal and non-federal entities that 
are anticipated to participate in the LCR MSCP had not yet been 
completed. Subsequent to the publication of the June 18, 2004, Federal 
Register notice, letters of financial commitment from representatives 
of the States of Arizona, California and Nevada were received by the 
Secretary of the Interior on August 17, 2004, during the public comment 
period on the Draft LCR MSCP program documents. These letters provide a 
commitment to ``share in the agreed upon LCR MSCP costs equally with 
the United States on a 50/50 federal/non-federal basis.''
    A number of other public comments received pursuant to the June 18, 
2004, Federal Register notice sought information regarding the 
financial assurances necessary to implement the LCR MSCP. The 
commitments contained in the August 17, 2004, letters from Arizona, 
California, and Nevada have now been incorporated into a Draft Funding 
and Management Agreement (FMA), which was developed during negotiations 
between the federal and non-federal parties to the LCR MSCP and is 
published as Exhibit A to the Final HCP. In addition, the parties have 
also developed a Draft IA, which is published as Exhibit B to the Final 
    Subsequent to publication of this Federal Register Notice and the 
FEIS/FEIR and other program documents, the Draft IA and Draft FMA will 
be presented to the relevant approving officials and respective boards. 
No final decisions have been made by the federal or non-federal parties 
with respect to the financial commitments or other provisions set forth 
in the August 17th letters and the Draft FMA, or with respect to the 
provisions in the Draft IA. Appropriate revisions, if any, will be 
included in any Final FMA and Final IA. Appropriate information 
regarding the issues addressed in the Draft FMA and the Draft IA will 
also be included in any Record of Decision (ROD) issued by the 
Secretary with respect to the LCR MSCP.

DATES: No decision will be made on the proposed action until at least 
30 days after the United States Environmental Protection Agency's (EPA) 
Notice of Availability for the LCR MSCP FEIS/FEIR has been published in 
the Federal Register. At this time, it is anticipated the Secretary of 
the Interior will complete a ROD in January 2005.

ADDRESSES: Copies of the LCR MSCP FEIS/FEIR, Final HCP, Final BA, Draft 
IA, and Draft FMA are available for public inspection and review at the 
locations listed in the SUPPLEMENTARY INFORMATION section. An internet 
version of the documents is available on the LCR MSCP Web site, http://www.lcrmscp.org.
 In addition, copies are available upon request from 

Mr. Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, 
2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021; or Mr. Glen 
Gould, Bureau

[[Page 75557]]

of Reclamation, P.O. Box 61470, LC-2011, Boulder City, NV, 89006-1470.

FOR FURTHER INFORMATION, CONTACT: Mr. Steve Spangle, Field Supervisor, 
Fish and Wildlife Service, 2321 West Royal Palm Road, Suite 103, 
Phoenix, AZ, 85021 or (602) 242-0210; or Mr. Glen Gould, Bureau of 
Reclamation, P.O. Box 61470, LC-2011, Boulder City, NV, 89006-1470 or 
(702) 293-8702.

SUPPLEMENTARY INFORMATION: This notice advises the public that the 
Service and Reclamation, with the participation of other federal and 
non-federal agencies, have gathered the information necessary to: (1) 
Formulate alternatives and determine impacts for the FEIS/FEIR related 
to the issuance of an ITP for the LCR MSCP; and (2) develop and 
implement the HCP, which provides measures to minimize and mitigate the 
effects of incidental take of federally listed species to the maximum 
extent practicable.
    Section 9 of the Act prohibits the ``taking'' of threatened and 
endangered species. However, the Service, under limited circumstances, 
may issue ITPs to take threatened or endangered wildlife species when 
such taking is incidental to, and not the purpose of, otherwise lawful 
activities. Regulations governing issuance of ITPs pursuant to the Act 
are published at 50 CFR Parts 13 and 17. This notice is provided 
pursuant to Section 10(c) of the Act and applicable NEPA regulations 
(40 CFR 1506.6).
    The LCR MSCP, the conservation program described in the HCP, and 
the BA were developed over the past seven years in a public process 
involving participants and stakeholders from potentially affected or 
interested groups on the LCR. These groups include federal agencies, 
i.e., the Service, Reclamation, BLM, BIA, NPS, and Western; six Tribes; 
the Lower Basin States of Arizona, California, and Nevada; and other 
interested LCR stakeholders. The groups were organized into a Steering 
Committee and various subject matter subcommittees to oversee the 
development of the LCR MSCP. Meetings of the Steering Committee were 
open to the public and time for public comment was included at each 
meeting. The LCR MSCP website contains information on meetings and 
documents. Three sets of public meetings were held from 1999 through 
2003 to explain the need for the LCR MSCP, request information on 
important issues for the NEPA process, receive input on the 
conservation program, and present alternatives. Three public hearings 
were held in July 2004 to receive public comment on the DEIS/DEIR.
    Proposed Action: The proposed action has two components. The first 
is the issuance of an ITP by the Service for covered activities on the 
LCR undertaken by the HCP applicants, pursuant to section 10(a)(1)(B) 
of the Act. The activities that would be covered by the ITP are water- 
and power-related actions, and other specific identified non-federal 
activities involving the LCR. The area covered by the ITP (and the LCR 
MSCP) includes Lake Mead up to its full pool elevation of 1,229 feet, 
Lake Mohave up to its full pool elevation of 647 feet, Lake Havasu up 
to its full pool elevation of 450 feet, and the LCR and its historical 
floodplain from the highest elevation of Lake Mead to the Southerly 
International Boundary with the Republic of Mexico. The requested term 
of the permit is 50 years. To meet the requirements of a section 
10(a)(1)(B) ITP, the LCR MSCP participants have developed and, with the 
cooperation of Reclamation, will implement the conservation plan 
described in the BA and in the HCP, which provides measures to minimize 
and mitigate incidental take of flycatchers, clapper rails, tortoises, 
bonytails, humpbacks, and razorbacks to the maximum extent practicable, 
and which ensures that the incidental take will not appreciably reduce 
the likelihood of the survival and recovery of these species in the 
wild. The conservation plan identified in the BA and the HCP also 
addresses potential impacts on the cuckoo and frog (candidate species) 
and 19 other species of animals and plants.
    The second component is the completion of consultation under 
section 7(a)(2) with Federal action agencies for their covered actions 
(identified in Chapter 2 of the BA), including implementation of the 
conservation plan by Reclamation as part of its proposed action (along 
with its identified continued and future operations and maintenance 
activities on the LCR).
    Alternatives: Three other alternatives are being considered as part 
of this process, as follows:
    1. No ITP--No issuance of an ITP. This alternative would require 
the LCR MSCP participants to pursue individual ESA compliance 
activities to address incidental take resulting from their actions or 
activities on the LCR or avoid taking actions that would result in 
incidental take. This approach would require the federal action 
agencies to consult separately on any proposed discretionary actions on 
the LCR.
    2. Listed Species Only--Issuance of an ITP authorizing the same 
covered actions by the LCR MSCP participants but only requesting 
incidental take coverage for the six species currently listed as 
endangered or threatened pursuant to the Act. This alternative includes 
measures to minimize and mitigate for the potential take of federally 
listed species.
    3. Off-Site Conservation--Issuance of an ITP authorizing the same 
covered actions by the LCR MSCP participants and the same list of 27 
species. Habitat restoration activities would occur outside of the LCR 
MSCP planning area in adjacent river basins. This alternative includes 
measures to minimize and mitigate for the potential take of federally 
listed species, candidate species, and other covered species.
    Pursuant to the June 10, 2004, order in Spirit of the Sage Council 
v. Norton, Civil Action No. 98-1873 (D.D.C.), the Service is enjoined 
from approving new section 10(a)(1)(B) permits or related documents 
containing ``No Surprises'' assurances until such time as the Service 
adopts new permit revocation rules specifically applicable to section 
10(a)(1)(B) permits in compliance with the public notice and comment 
requirements of the Administrative Procedure Act. This Federal Register 
notice provides notice of a step in the review and processing for the 
potential issuance of a section 10(a)(1)(B) permit; any subsequent 
permit issuance will be in accordance with the Court's order. Until 
such time as the Service's authority to issue permits with ``No 
Surprises'' assurances has been reinstated, the Service will not 
approve any incidental take permits or related documents that contain 
``No Surprises'' assurances, consistent with the Court's order.
    Copies of the FEIS/FEIR, Final HCP, Final BA, ITP Application, 
Draft IA, and Draft FMA are available for public inspection and review 
at the following locations (by appointment at government offices):
     Department of the Interior, Natural Resources Library, 
1849 C. St. NW., Washington, DC, 20240.
     Fish and Wildlife Service, 500 Gold Avenue SW., Room 4012, 
Albuquerque, NM, 87102.
     Fish and Wildlife Service, 2321 West Royal Palm Road, 
Suite 103, Phoenix, AZ, 85021.
     Bureau of Reclamation, Lower Colorado Region, 500 Date 
Street, Boulder City, NV, 86009-1470.
     Bureau of Reclamation, Upper Colorado Region, 125 South 
State Street, Room 6107, Salt Lake City, UT, 84138-1102.

[[Page 75558]]

     Bureau of Reclamation Library, Denver Federal Center, 6th 
Avenue and Kipling, Building 67, Room 167, Denver, CO, 80225.
     Bureau of Reclamation, Phoenix Area Office, 2222 W. Dunlap 
Ave., Suite 100, Phoenix, AZ, 85021.
     Metropolitan Water District of Southern California, 700 N. 
Alameda St., Los Angeles, CA, 90017.
     Government Document Service, Arizona State University, 
Tempe, AZ, 85287.
     Yuma County Library, 350 S. 3rd Ave., Yuma, AZ, 85384.
     Palo Verde Valley Library, 125 W. Chanslor Way, Blythe, 
CA, 92225.
     Mohave County Library, 1170 Hancock Rd., Bullhead City, 
AZ, 86442.
     Laughlin Library, 2840 South Needles Hwy., Laughlin, NV, 
     Clark County Library, 1401 East Flamingo Road, Las Vegas, 
NV, 89119.
     James I. Gibson Library, 280 Water Street, Henderson, NV, 

    Dated: December 14, 2004.
Willie R. Taylor,
Director, Office of Environmental Policy and Compliance.
[FR Doc. 04-27677 Filed 12-16-04; 8:45 am]