[Federal Register Volume 80, Number 192 (Monday, October 5, 2015)]
[Pages 60169-60171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25216]



Fish and Wildlife Service

[FWS-R1-ES-2015-N181; FXES11120100000-156-FF01E00000]

Draft Habitat Conservation Plan for Oregon Department of 
Transportation Routine Maintenance Activities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comment.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from the Oregon Department of Transportation 
(ODOT) for an incidental take permit (permit) under the Endangered 
Species Act (ESA) of 1973, as amended. The ODOT's application requests 
a 25-year permit that would authorize ``take'' of the endangered 
Fender's blue butterfly and the threatened Oregon silverspot butterfly 
incidental to otherwise lawful activities associated with road right-
of-way (ROW) maintenance and management activities. The application 
includes ODOT's draft habitat conservation plan (HCP), which describes 
the actions ODOT will implement to minimize and mitigate the impacts of 
incidental take caused by covered activities. We invite comment on the 
application, draft HCP, and the Service's draft environmental action 
statement (EAS) and preliminary determination that the draft HCP 
qualifies for a categorical exclusion under the National Environmental 
Policy Act (NEPA).

DATES: Written comments on the draft HCP and the NEPA categorical 
exclusion determination must be received from interested parties no 
later than November 4, 2015.

ADDRESSES: To request further information or submit written comments, 
please use one of the following methods, and note that your information 
request or comments are in reference to the ODOT HCP.
     Internet: Documents may be viewed on the Internet at 
     Email: ODOTHCPcomments@fws.gov. Include ``ODOT HCP'' in 
the subject line of the message or comments.
     U.S. Mail: State Supervisor, Oregon Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2600 SE 98th Avenue, Suite 100, 
Portland, OR 97266.
     Fax: 503-231-6195, Attn: ODOT HCP.
     In-Person Viewing or Pickup: Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the Oregon Fish and Wildlife Office, 
U.S. Fish and Wildlife Service, 2600 SE 98th Avenue, Suite 100, 
Portland, OR 97266.

FOR FURTHER INFORMATION CONTACT: Richard Szlemp, U.S. Fish and Wildlife 
Service (see ADDRESSES), telephone: 503-231-6179, facsimile: 503-231- 
6195. If you use a telecommunications device for the deaf, please call 
the Federal Information Relay Service at 800-877-8339.



    Section 9 of the ESA (16 U.S.C. 1531 et seq.) prohibits the take of 
fish and wildlife species listed as endangered or threatened under 
section 4 of the ESA. Under the ESA, 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)). The term 
``harm,'' as defined in our regulations, includes significant habitat 
modification or degradation that results in death or injury to listed 
species by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering (50 CFR 17.3). The term 
``harass'' is defined in our regulations as an intentional or negligent 
act or omission which creates the likelihood of injury to wildlife by 
annoying it to such an extent as to significantly disrupt normal 
behavioral patterns, which include, but are not limited to, breeding, 
feeding, or sheltering (50 CFR 17.3).
    Under specified circumstances, the Service may issue permits that 
authorize take of federally listed species, provided the take is 
incidental to, but not the purpose of, an otherwise lawful activity. 
Regulations governing permits for endangered and threatened species are 
at 50 CFR 17.22 and 17.32, respectively. Section 10(a)(1)(B) of the ESA 
contains provisions for issuing such incidental take permits to non-
Federal entities for the take of endangered and threatened species, 
provided the following criteria are met:
    (1) The taking will be incidental;
    (2) The applicant will prepare a conservation plan that, to the 
maximum extent practicable, identifies the steps the applicant will 
take to minimize and mitigate the impact 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

[[Page 60170]]

require as being necessary or appropriate for the purposes of the plan.

Proposed Action

    The Service proposes to approve the HCP and to issue a permit, both 
with a term of 25 years, to ODOT for incidental take of the endangered 
Fender's blue butterfly (Icaricia icarioides fenderi) and the 
threatened Oregon silverspot butterfly (Speyeria zerene hippolyta) 
caused by covered activities, if permit issuance criteria are met.
    The HCP addresses routine maintenance activities on ODOT-managed 
roads and their associated right-of-ways (ROWs) throughout Oregon. The 
ROW is defined as property along the State highway system owned by 
ODOT, including paved surface, shoulders, and drainage ditches. Medians 
and interchanges associated with the highway system are part of the 
ROW. The ROW width varies considerably and is often based on property 
purchased when the highway was constructed. Typically, the ROW boundary 
is just beyond the top of slopes cut into hills or the bottom of low 
areas filled for construction of the highway. Populations of Federal 
and State listed plants known to occur within ODOT ROW were field 
located through targeted surveys, verified, and posted.
    The ``Operational Roadway'' is that portion of the ROW that has 
been identified as critical for maintaining the integrity of the 
highway and the safety of the travelling public. Under the HCP, ODOT 
will not specifically protect or manage listed plants or butterfly 
habitat in the Operational Roadway because of the importance of this 
area for road safety and functionality. This does not preclude the 
continued presence of listed species and is one reason an incidental 
take permit is being sought.
    ODOT has identified known populations of listed species outside the 
Operational Roadway that they propose to avoid impacting. ODOT 
established a Special Management Area (SMA) Program designed to protect 
and manage threatened and endangered species, primarily plants, 
occurring adjacent to the highway. The specific boundary between the 
Operational Roadway and protected areas is determined on a case-by-case 
basis, depending on topography, highway features and facilities, and 
proximity to protected resources. When a roadside ditch is present, the 
Operational Roadway typically ends 4 feet beyond the bottom center of 
the ditch. When no ditch is apparent, the Operational Roadway boundary 
is usually 10 feet beyond the edge of pavement. Under the HCP, the SMAs 
incorporate the known populations of rare plants on ODOT ROW that ODOT 
has agreed to avoid impacting. In most cases, only periodic maintenance 
is necessary in SMAs and site-specific restrictions have been developed 
to protect listed species in each SMA. However, most of the highway 
facilities that require routine maintenance are located in the 
Operational Roadway.
    All federally listed plants in Oregon are also protected by State 
law under the Oregon Endangered Species Act, and their protection and 
conservation are administered by the Oregon Department of Agriculture 
(ODA). The Oregon ESA protects many other plant species beyond those 
protected under the Federal ESA. All State agencies, including ODOT, 
must consult with ODA when a proposed action on land owned or leased by 
the State, or for which the State holds a recorded easement, has the 
potential to appreciably reduce the likelihood of the survival or 
recovery of any listed plant species. ODA will accept the HCP as the 
foundation for consultation with ODOT regarding possible routine 
roadside maintenance impacts to State listed plants. Because of the 
Oregon ESA, conservation measures for many plant species are included 
in the HCP, but they will not be included under the incidental take 
permit since the Federal ESA has very limited take prohibitions with 
respect to federally listed plants.
    The anticipated extent of impacts for which incidental take permit 
coverage is sought includes 0.066 acre of Fender's blue butterfly 
larval host plants and 1.11 acres of adult nectar plants. These impacts 
will be mitigated at a ratio of 3:1. Impacts to the Oregon silverspot 
butterfly along the ROW would amount to about 0.27 acre of its habitat. 
These impacts would occur as a result of ODOT mowing less than a mile 
of ROW containing herbaceous flowering plants alongside U.S. Highway 
101 in the central coast area to discourage use by Oregon silverspot 
butterflies so as to reduce their likelihood of being hit by highway 
traffic. Additional measures may involve increasing listed butterfly 
nectar and larval food plants in meadows that are distant from the 
road, and adding hedgerow or forest fringe shelter to meadows on both 
sides of the highway so listed butterflies will not have to cross the 
road to access nectar and larval plant resources.

National Environmental Policy Act Compliance

    The development of the draft HCP and the proposed issuance of an 
incidental take permit is a Federal action that triggers the need for 
compliance with the National Environmental Policy Act of 1969, as 
amended (42 U.S.C. 4321 et seq.) (NEPA). We have made a preliminary 
determination that the proposed HCP and permit issuance are eligible 
for categorical exclusion under the NEPA. The basis for our preliminary 
determination is contained in an EAS, which is available for public 
review (see ADDRESSES).

Public Comments

    You may submit your comments and materials by one of the methods 
listed in the ADDRESSES section. We request data, comments, new 
information, or suggestions from the public, other concerned 
governmental agencies, the scientific community, Tribes, industry, or 
any other interested party on our proposed Federal action. We 
particularly seek comments on the following: (1) Biological data or 
other information regarding the Fender's blue butterfly and Oregon 
silverspot butterfly; (2) additional information concerning the range, 
distribution, population size, and population trends of these 
butterflies; (3) current or planned activities in the HCP area and 
their possible impacts on these species; (4) the presence of 
archeological sites, buildings and structures, historic events, sacred 
and traditional areas, and other historic preservation concerns in the 
HCP area, which are required to be considered in Federal project 
planning by the National Historic Preservation Act; (5) identification 
of any other environmental issues that should be considered with regard 
to the permit action; and (6) information regarding the adequacy of the 
HCP pursuant to the requirements for permits at 50 CFR parts 13 and 17.

Public Availability of Comments

    All comments and materials we receive become part of the public 
record associated with this action. Before including your address, 
phone number, email address, or other personal identifying information 
in your comments, you should be aware that your entire comment--
including your personal identifying information--may 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. Comments and materials we 
receive, as well as supporting documentation will be available for 
public inspection by appointment, during normal business hours, at our 
Oregon Fish and Wildlife Office (see ADDRESSES).

[[Page 60171]]

Next Steps

    We will evaluate the HCP, as well as any comments we receive, to 
determine whether implementation of the HCP would meet the criteria for 
issuance of a permit under section 10(a)(1)(B) of the ESA. We will also 
evaluate whether the proposed permit action would comply with section 7 
of the ESA by conducting an intra-Service section 7 consultation. We 
will consider the results of this consultation, in combination with the 
above findings, in our final analysis to determine whether or not to 
issue a permit to the ODOT. We will not make the final NEPA and permit 
decisions until after the end of the 30-day public comment period on 
this notice, and we will fully consider all comments we receive during 
the public comment period. If we determine that the permit issuance 
requirements are met, the Service will issue a permit to the ODOT.


    We provide this notice in accordance with the requirements of 
section 10 of the ESA (16 U.S.C. 1531 et seq.), and NEPA (42 U.S.C. 
4321 et seq.) and their implementing regulations (50 CFR 17.22 and 40 
CFR 1506.6, respectively).

Paul Henson,
Oregon State Supervisor, U.S. Fish and Wildlife Service, Portland, 
[FR Doc. 2015-25216 Filed 10-2-15; 8:45 am]