[Federal Register Volume 76, Number 133 (Tuesday, July 12, 2011)]
[Pages 40927-40929]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17452]



Fish and Wildlife Service

[FWS-R1-ES-2011-N027; 10120-1112-0000-F2]

Endangered and Threatened Wildlife and Plants; Draft Habitat 
Conservation Plan and Environmental Assessment for Construction and 
Operations at Kauai Lagoons Resort and Golf Course on Kauai, HI

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; receipt of permit application.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from Kauai Lagoons LLC (KL) (applicant) for an 
incidental take permit (ITP) under the Endangered Species Act of 1973, 
as amended (ESA). The applicant is requesting a 30-year ITP to 
authorize take of eight bird species--six endangered, one threatened, 
and one candidate for listing. The ITP application includes a draft 
habitat conservation plan (HCP) that describes the actions and measures 
the applicant will implement to minimize, mitigate, and monitor 
incidental take of the covered species. The ITP application also 
includes a draft implementing agreement (IA). The Service also 
announces the availability of a draft Environmental Assessment (EA) 
that has been prepared in response to the permit application in 
accordance with the requirements of the National Environmental Policy 
Act (NEPA). The Service is making the permit application materials and 
draft EA available for public review and comment.

DATES: All comments from interested parties must be received on or 
before August 26, 2011.

ADDRESSES: Please address written comments to Loyal Mehrhoff, Project 
Leader, Pacific Islands Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 
96850. You may also send comments by facsimile to (808) 792-9581.

FOR FURTHER INFORMATION CONTACT: Michelle Bogardus, Fish and Wildlife 
Biologist, U.S. Fish and Wildlife Service (see ADDRESSES above); 
telephone (808) 792-9400.

SUPPLEMENTARY INFORMATION: The applicant is requesting a 30-year ITP to 
authorize take of six bird species that are federally listed as 
endangered: the Hawaiian goose (Branta sandvicensis), Hawaiian moorhen 
(Gallinula chloropus sandvicensis), Hawaiian coot (Fulica alai), 
Hawaiian duck (Anas wyvilliana), Hawaiian stilt (Himantopus mexicanus 
knudseni), and the Hawaiian petrel (Pterodroma sandwichensis). The 
requested ITP would also cover Newell's shearwater (Puffinus 
auricularis newelli), which is federally listed as threatened, and the 
band-rumped storm petrel (Oceanodroma castro), a candidate for listing 
under the ESA.
    KL is also applying for an incidental take license (ITL) from the 
Hawaii Department of Land and Natural Resources (DLNR) to comply with 
State endangered species laws.

Availability of Documents

    You may request copies of the draft HCP, IA, and EA by contacting 
the Service's Pacific Islands Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT above). These documents are also available 
electronically for review on the Service's Pacific Islands Fish and 
Wildlife Office Web site at http://www.fws.gov/pacificislands. Comments 
the Service receives, as well as supporting documentation used in 
preparing the final NEPA document, will become part of the public 
record and will be available for public inspection by appointment 
during regular business hours. Before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal information--may be made publicly available at any time. 
While you can ask in your comment to withhold your personal identifying 
information from public review, this cannot be guaranteed.
    The Service specifically requests information from the public on 
whether the application meets the statutory and regulatory requirements 
for issuing a permit, and identification of any aspects of the human 
environment that should be analyzed in the EA. The Service is 
soliciting information regarding the adequacy of the HCP to minimize, 
mitigate, and monitor the proposed incidental take of the covered 
species and to provide for adaptive management, as evaluated against 
our permit issuance criteria found in section 10(a) of the ESA, 16 
U.S.C. 1539(a), and 50 CFR 13.21, 17.22, and 17.32. In

[[Page 40928]]

compliance with section 10(c) of the ESA (16 U.S.C. 1539(c)), the 
Service is making the permit application materials available for public 
review and comment for 45 days (see DATES section above).


    Section 9 of the ESA (16 U.S.C. 1538) and Federal regulations 
prohibit the take of fish and wildlife species listed as endangered or 
threatened. 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 (16 U.S.C. 1532 (19)). However, under section 10(a) 
of the ESA (16 U.S.C. 1539(a)), the Service may issue permits to 
authorize incidental take of federally listed fish and wildlife 
species. Incidental take is defined as take that is incidental to, and 
not the purpose of, carrying out an otherwise lawful activity. 
Regulations governing incidental take permits for threatened and 
endangered species are found at 50 CFR 17.32 and 17.22. If issued, the 
permittee would receive assurances under the Service's ``No Surprises'' 
regulations at 50 CFR 17.32(b)(5) and 50 CFR 17.22(b)(5).
    KL owns and operates Kauai Lagoons Resort on the island of Kauai. 
The resort was built in the 1980s, encompasses approximately 600 acres, 
and was originally developed with two 18-hole championship golf 
courses, a golf and racquet club facility, a network of man-made 
navigable lagoons, a restaurant, commercial development, and associated 
parking areas. KL is developing additional facilities at the resort to 
include construction of 707 condominium units, 65 single family 
residential lots, a central operations building, a new golf clubhouse, 
other additional infrastructure, and conversion of the two existing 18-
hole golf courses into a 27-hole golf course. New construction will 
result in additional artificial lights within the KL property. A 
portion of these construction activities have already been completed. 
New construction activities will occur on approximately 230 acres of 
the 600-acre KL property.
    Despite its artificial nature, the KL resort's water features, as 
well as grounds maintenance and continued predator management, have 
attracted the Hawaiian goose, Hawaiian moorhen, Hawaiian duck, Hawaiian 
stilt, and Hawaiian coot to the KL property. These five waterbird 
species are known to nest on the KL property. Currently, the nesting 
Hawaiian goose population at the KL resort property is one of the 
largest and most productive in the State. The Hawaiian goose and the 
other waterbirds are at risk of injury and mortality due to golfing 
activities (collisions with golf carts and golf balls) and course 
operations, and the future construction activities at KL. Hawaiian 
geese and Hawaiian coots have been documented to be hurt or killed from 
golf course operations. Construction activities, such as site clearing, 
mass grading, or building construction, also pose a threat to the 
Hawaiian goose and the other waterbirds.
    The KL property is adjacent to Lihue International Airport on the 
island of Kauai. Hawaiian geese have been onsite residents of KL since 
the late 1990s. In the ensuing 10 years since the geese became 
established, the nesting activity on the property has increased from 5 
nests in 1999 to 66 nests in 2009, predominantly due to predator 
management and the presence of created water features. The close 
proximity of nesting and roosting Hawaiian geese and waterbirds to the 
Lihue International Airport poses a threat to human safety because of 
the risk of bird strikes to aircraft. In order to address the potential 
safety issue, the Service and Hawaii's Division of Forestry and 
Wildlife (DOFAW) have participated in a multi-agency effort to safely 
translocate some Hawaiian geese to other suitable locations on Kauai. 
Further efforts to reduce the population growth of Hawaiian geese in 
the vicinity of the Airport are ongoing, and the Service is working 
with FAA to address airport maintenance and operations pursuant to 
section 7 of the ESA. On April 14, 2011, Hawaii Governor Neil 
Abercrombie signed a Proclamation requiring the translocation of 
Hawaiian geese from KL over the next five years. The Proclamation 
suspends State laws as necessary to expedite DOFAW's effort to move 
birds to suitable locations on other islands.
    The Hawaiian petrel, Newell's shearwater, and the band-rumped storm 
petrel are seabird species that spend a large part of the year at sea, 
forage in the open ocean, and breed on Kauai. Beginning in March and 
April, adults initiate breeding at colonial nesting grounds in the 
interior mountains of Kauai. Fledglings (i.e., young birds learning how 
to fly) travel from the nesting colony to the sea in the fall (mid-
September to mid-December). They are known to be attracted to 
artificially lighted areas, which can result in disorientation and 
subsequent fallout (ceasing to be able to fly and involuntarily 
descending) due to exhaustion. Adult seabirds can collide with towers, 
power lines, and other tall structures while flying at night between 
their nesting colonies and at-sea foraging areas. To date, one Newell's 
shearwater has been found on KL property.

Proposed Plan

    The draft HCP describes the impacts of take associated with KL's 
activities, and includes measures to minimize, mitigate, and monitor 
the impacts of incidental take on each of the covered species. KL is 
proposing the following mitigation measures: (1) On-site cooperation 
with plans to translocate Hawaiian geese to reduce the risk of bird 
strikes by aircraft; (2) funding for the development of a plan to 
address translocation of geese off of KL; and (3) continuation of 
ongoing monitoring efforts and predator control. To reduce the 
potential of collisions between airplanes and birds, KL will not 
purposely enhance the suitability of the resort as a breeding habitat 
for the Hawaiian goose. For unavoidable take of listed seabirds, KL 
proposes to pay into the Kauai Seabird Habitat Conservation Plan 
(currently being developed by DOFAW) so that funds can be used to 
assist in the enhancement of known seabird colonies through predator 
management, habitat restoration and monitoring. The HCP also includes 
numerous avoidance and minimization measures that will significantly 
limit the take of the covered species due to resort operations and 
    The draft EA contains an analysis of two alternatives: (1) Proposed 
Action (issuance of a permit to KL on the basis of the activities 
described in the proposed HCP); and (2) No Action (no permit issuance 
and no measures by the applicant to reduce or eliminate the take of 
covered species). The draft EA considers the direct, indirect, and 
cumulative effects of the alternatives, including any measures under 
the Proposed Action alternative intended to minimize and mitigate such 
impacts. The draft EA also identifies additional alternatives that were 
considered but not fully analyzed, as they did not meet the purpose and 
need of the Proposed Action.
    The Service invites comments and suggestions from all interested 
parties on the draft documents associated with the permit application, 
and requests that comments be as specific as possible. In particular, 
information and comments regarding the following topics are requested: 
(1) Whether the proposed HCP sufficiently minimizes and mitigates the 
impacts of take to the covered species to the maximum extent 
practicable over its 30-year term; (2) additional adaptive management 
or monitoring provisions that may be incorporated into the Proposed 

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alternative, and their benefits to listed species; (3) the direct, 
indirect, or cumulative effects that implementation of either 
alternative could have on the human environment; (4) other plans or 
projects that might be relevant to this action; and (5) any other 
information pertinent to evaluating the effects of the proposed action 
on the human environment.


    This notice is provided pursuant to section 10(c) (16 U.S.C. 
1539(c)) of the ESA and NEPA regulations (40 CFR 1506.6). The public 
process for the proposed Federal permit action will be completed after 
the public comment period, at which time we will evaluate the permit 
application, the HCP and associated documents (including the EA), and 
comments submitted thereon to determine whether or not the proposed 
action meets the requirements of section 10(a) (16 U.S.C. 1539(a)) of 
the ESA and has been adequately evaluated under NEPA.

    Dated: June 23, 2011.
Richard Hannan,
Deputy Regional Director, Region 1, Portland, Oregon.
[FR Doc. 2011-17452 Filed 7-11-11; 8:45 am]