[Federal Register Volume 86, Number 70 (Wednesday, April 14, 2021)]
[Notices]
[Pages 19634-19636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07475]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-R2-ES-2020-N125; FXES11140200000-212-FF02ENEH00]
Application for an Incidental Take Permit; Renewable (Wind and
Solar) Energy, Power Line, and Communication Tower Habitat Conservation
Plan for the Lesser Prairie-Chicken; Colorado, Kansas, New Mexico,
Oklahoma and Texas
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability; request for comments.
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SUMMARY: This notice advises the public that LPC Conservation LLC
(applicant) has applied to the U.S. Fish and Wildlife Service (Service)
for an incidental take permit (ITP) supported by the Renewable (Wind
and Solar) Energy, Power Line, and Communication Tower Habitat
Conservation Plan for the Lesser Prairie-chicken; Colorado, Kansas, New
Mexico, Oklahoma and Texas (HCP). The applicant has applied to the
Service for the ITP pursuant to the Endangered Species Act. The
requested ITP, if approved, would authorize incidental take of the
lesser prairie-chicken resulting from activities covered by the HCP
(e.g., wind, solar, transmission lines, and communication towers) and
incidental take resulting from conservation actions taken to avoid,
minimize, and mitigate impacts of the incidental take of the LEPC that
result from covered activities. If approved, the requested ITP would
become effective should the LEPC become federally listed during the
life of the ITP and HCP. With this notice we also announce the
availability of a draft environmental assessment (EA) that has been
prepared to evaluate the ITP application in accordance with the
requirements of the National Environmental Policy Act. We are making
the ITP application package, including the HCP and draft EA, available
for public review and comment.
DATES: Submission of comments: We will accept comments received or
postmarked on or before May 14, 2021.
ADDRESSES: Obtaining documents: You may obtain copies of the ITP
application, HCP, draft EA, or other related documents on the internet
at https://www.fws.gov/southwest/es/ArlingtonTexas.
Submitting comments: You may submit written comments by email to
arles@fws.gov. Please note that your comment is in reference to the
above-referenced HCP. For more information, see Public Availability of
Comments.
FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S.
Fish and Wildlife Service, Arlington, Texas, Ecological Services
Office; telephone 817-277-1100. Hearing or speech impaired individuals
may call the Federal Relay Service at 800-877-8339 for TTY service.
SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service
(Service), make available the Renewable (Wind and Solar) Energy, Power
Line, and Communication Tower Habitat Conservation Plan for the Lesser
Prairie-chicken; Colorado, Kansas, New Mexico, Oklahoma and Texas
(HCP). The LPC Conservation LLC (applicant) has applied for an
incidental take permit (ITP). If approved, the requested ITP would
become effective and authorize incidental take of the lesser prairie-
chicken (Tympanuchus pallidicinctus; LEPC) should the LEPC become
federally listed during the life of the ITP and HCP under the
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et
seq.).
We are considering issuing a section 10(a)(1)(B) ITP for the LEPC,
a species that is not currently listed under the ESA, in response to
the applicant's application and supporting HCP. While our 2016 revised
HCP handbook (Handbook) provides guidance that an ITP and supporting
HCP include at least one ESA-listed animal species, the issuance of
this ITP could provide for LEPC conservation in several ways. First,
the proposed HCP may meet the Service's conservation recommendation for
the LEPC because it emphasizes avoidance and minimization, and focuses
mitigation in areas that can serve as conservation strongholds for this
species. Depending on enrollment, this mitigation strategy could help
to preclude the need to list the LEPC or could help to recover the
LEPC, if listing is warranted in the future. Second, the proposed HCP
would provide taxpayer and industry savings in the use of one
conservation planning strategy. In contrast, developing a CCAA prior to
a future listing and developing an HCP, or multiple HCPs, after a
potential future listing is inefficient for both the Federal agencies
and industry participants. The proposed HCP would be more efficient
because potential participants could enroll on a project-by-project
basis either pre- or post a future listing. This allows for greater,
more consistent, and more predictable conservation efforts to be
undertaken. Third, with this proposed HCP, the Service would issue a
permit that does not go into effect until a future listing, if it
occurs. This is the same as our practice for permits associated with
CCAAs and ITPs associated with multi-species HCPs that include unlisted
species. Finally, the proposed HCP also supports States' management
ability of the unlisted species similar to CCAAs in that the proposed
ITP does not become effective until such time that the covered species
may be listed. Prelisting participation is voluntary for participants
and provides the affected States continued regulatory authority
regarding wildlife species.
We believe considering a HCP without a currently listed species, in
this instance, is supported by the Conference Report to the 1982
Amendments that created HCPs (Conference Report) which expressly
considered both listed and unlisted species, H.R. Rep No. 97-835, at 30
(1982). The Conference Report states that ``although the conservation
plan is keyed to the permit provisions of the Act which only apply to
listed species, the committee intends that conservation plans may
address both listed and
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unlisted species.'' Id. The Conference Report continues by stating that
the inclusion of unlisted species supports the Congressional purpose
that the species not be viewed in isolation but in terms of their
relationship to the ecosystem as a whole. This broad view of
conservation, including conservation planning and permitting for
unlisted species, is ``consistent with the purposes of several other
fish and wildlife statutes (e.g, Fish and Wildlife Act of 1956, Fish
and Wildlife Coordination Act) which are intended to authorize the
Secretary to cooperate with the States and private entities on matters
regarding conservation of all fish and wildlife resources of this
nation.'' Id. The Conference Report encourages the Secretary to develop
``creative partnerships between the public and private sectors'' and
notes that the Secretary ``may utilize this provision to approve
conservation plans which provide long-term commitments regarding the
conservation of listed as well as unlisted species.'' Id.
Through the proposed minimization and mitigation measures, the HCP
would provide long-term commitments regarding the conservation of LEPC
that would fully offset impacts to the species associated with habitat
loss and fragmentation resulting from implementation of the covered
activities by participants in the HCP. The HCP would provide voluntary
pre-listing conservation that may be used to evaluate the species'
status in a future listing decision, and potential participants would
have the option to enroll in the HCP prior to or after a potential
future listing decision. As such, processing the ITP application and
HCP under 10(a)(1)(B) could provide for long-term conservation for the
LEPC and more flexibility and long-term regulatory certainty for
participants, as described above.
Based on the information above, we have determined that processing
this ITP application and HCP is consistent with the Conference Report
and current regulations, and, therefore, we may process this ITP
application and HCP under section 10(a)(1)(B) of the ESA and its
implementing regulations (50 CFR 17.22(b) and 17.32(b)).
In accordance with the requirements of the National Environmental
Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.), we advise the public
that:
1. We have prepared a draft environmental assessment (EA) to
evaluate the ITP application. We are accepting comments on the ITP
application and draft EA.
2. The applicant has developed an HCP which describes the measures
the applicant has volunteered to take to meet the issuance criteria for
a 10(a)(1)(B) ITP associated with an HCP. The issuance criteria for
HCPs are found at 50 CFR 17.22(b)(2) and 50 CFR 17.32(b)(2).
3. The HCP would be implemented by those parties who voluntarily
enroll, providing conservation upon enrollment, but the subject ITP
would not be effective until such time as the cover species may be
listed in the future. The ITP would be effective only for those
participants fully implementing the conservation plan.
4. As described in the HCP, the potential incidental take of LEPC
could result from otherwise lawful, voluntary activities covered by the
HCP.
5. We have included the alternative of issuing an enhancement of
survival permit (ESP) under section 10(a)(1)(A) of the ESA, the
Candidate Conservation Agreement with Assurances Policy, and
implementing regulations (50 CFR 17.22(d) and 17.32(d)), and we will
accept comments related to this alternative.
Background
Section 9 of the ESA and our implementing regulations at 50 CFR
part 17 prohibit the ``take'' of fish or wildlife species listed as
endangered or threatened. Take is defined under the ESA as to ``harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect
listed animal species, or to attempt to engage in such conduct'' (16
U.S.C. 1538(19)). However, under section 10(a) of the ESA, we may issue
permits to authorize incidental take of listed species. ``Incidental
take'' is defined by the ESA as take that is incidental to, and not the
purpose of, carrying out an otherwise lawful activity.
Regulations governing such take of endangered and threatened
species are found at 50 CFR 17.21-22 and 50 CFR 17.31-32, respectively.
Proposed Action
The proposed action involves the issuance of a 10(a)(1)(B)
incidental take permit (ITP) to LPC Conservation LLC (applicant) and
approval of the proposed Renewable (Wind and Solar) Energy, Power Line,
and Communication Tower Habitat Conservation Plan for the Lesser
Prairie-chicken; Colorado, Kansas, New Mexico, Oklahoma and Texas
(HCP). The ITP would cover incidental ``take'' of the LEPC associated
with wind, solar, power line, and communication tower buildout,
including ancillary (e.g., access road, lay down yard, power line
interconnection) ground-disturbing activities associated with these
project types within the HCP permit area that could affect potentially
suitable LEPC habitat (the ``covered activities''). In addition, the
covered activities include other ground disturbing activities which
could occur during some types of repairs required during the operations
and maintenance phase, project repowering, or project decommissioning
within the permit area.
The requested term of the ITP is 30 years, and the ITP would
authorize incidental take of LEPC associated with impacts to up to
500,000 acres of suitable LEPC habitat within the plan area
(approximately 1.7 percent of the 30,178,085 total acres of potentially
suitable LEPC habitat within the plan area) resulting from
implementation of the covered activities by participants in the HCP.
To meet the requirements of a section 10(a)(1)(B) ITP, the
applicant has developed, and proposes to implement, the HCP, which
describes the conservation measures the applicant has voluntarily
agreed to undertake. These measures will be implemented prior to or
concurrent with proposed impacts. These measures include LEPC habitat
conservation through enhancement and restoration. On average, for every
acre of LEPC habitat impacted, 2 acres of perpetual LEPC habitat
conservation would be required. Of those 2 acres, 1 acre would consist
of restoration and the other acre would consist of enhancement.
Restoration actions include removal of woody vegetation encroachment,
removal infrastructure, and conversion of cropland to grasslands.
Enhancement efforts primarily include actions to maintain or enhance
the quality of existing LEPC habitat, such as prescribed burning,
prescribed grazing, and chemical and mechanical manipulation of the
vegetative community. Implementation of the proposed LEPC habitat
conservation measures are projected to result in no net loss of LEPC
habitat. The ITP would authorize incidental take that may result from
the implementation of the proposed conservation measures, including
activities occurring on mitigation parcels that, while providing a
long-term benefit to LEPC, may have temporary impacts to the species.
The HCP, including the proposed conservation measures, was
developed in coordination with the Service. Implementation of the HCP
requirements, including the conservation measures, would be required
for all participants in the HCP regardless of the listing status of the
LEPC. The proposed conservation measures, once implemented, would
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fully offset impacts to the LEPC associated with habitat loss and
fragmentation resulting from implementation of the covered activities,
and would provide a long-term conservation benefit to LEPC.
Alternatives
We are considering two alternatives to the proposed action as part
of this process: Issuance of an Enhancement of Survival Permit for a
Candidate Conservation Agreement With Assurances, and a No Action
Alternative.
1. Issuance of an Enhancement of Survival Permit for a Candidate
Conservation Agreement With Assurances
Under this alternative, instead of approving the HCP and issuing an
ITP, the Service would issue an enhancement of survival permit (ESP)
pursuant to section 10(a)(1)(A) of the ESA, supported by a candidate
conservation agreement with assurances (CCAA), to the applicant for
incidental take associated with the covered activities in the CCAA. The
proposed covered activities in the CCAA would be the same as those
proposed in the HCP. The permit term for the ESP would be 30 years.
Under this alternative, it is assumed the applicant (in the role of
CCAA administrator) would require enrolled projects to implement all
the avoidance, minimization, mitigation, monitoring, adaptive
management, and reporting processes described in the HCP as part of the
CCAA. It is anticipated that a similar level of wind, solar, power
line, and communication tower development within the permit area would
occur under an HCP or a CCAA for each project. However, the enrollment
of projects under the CCAA would end upon the future date of a possible
listing of the covered species; whereas, the HCP enrollment would
continue for the duration of the permit. We anticipate that this
alternative would result in the same level of potential impacts to LEPC
and the same level of LEPC conservation as what is proposed in the HCP
for those enrolled prior to listing, but projects after a potential
listing would need to develop their own HCPs or find an alternative
coverage for incidental take. This action would be consistent with
existing Service guidance for conservation actions of unlisted species.
2. No Action Alternative
Under this alternative, the Service would not issue an ITP or an
ESP, and therefore this programmatic permitting structure would not be
available for willing participants. While the LEPC remains unlisted,
potentially participating entities (i.e., wind, solar, power line, and
communication tower companies) would have little economic or legal
incentive to voluntarily initiate the conservation or management
activities that are proposed in the HCP to benefit the LEPC. Therefore,
unless potentially participating entities voluntarily participate in
another programmatic permitting option, should one be available, or
voluntarily develop their own stand along permitting option,
conservation measures above and beyond those directed by existing
Federal, State, and local laws, policies, or regulations likely would
not be implemented, and the LEPC would not gain additional protections
and conservation benefits over what currently exists. On private lands,
where the State or Federal government has no authority to protect or
direct the management of LEPC habitat, LEPC conservation programs would
be implemented entirely at the discretion of the landowners and private
developers.
Next Steps
We will evaluate the permit application, HCP, associated documents,
and comments we receive to determine whether the ITP application meets
the requirements of ESA, NEPA, and implementing regulations, or whether
the issuance of an ESP should be considered. If we determine that all
requirements are met, we will approve the HCP and issue the ITP under
section 10(a)(1)(B) of the ESA (16 U.S.C. 1531 et seq.) to the
applicant in accordance with the terms of the HCP and specific terms
and conditions of the authorizing ITP. Alternatively, we could approve
this plan as a CCAA and issue an ESP under section 10(a)(1)(A) of the
ESA (16 U.S.C. 1531 et seq.) and applicable regulations. We will
consider comments on both the alternative and the denial of issuing a
permit in our final decision. We will not make our final decision until
after the 30-day comment period ends, and we have fully considered all
comments received during the public comment period.
Public Availability of Comments
All comments we receive become part of the public record associated
with this action. Requests for copies of comments will be handled in
accordance with the Freedom of Information Act, NEPA, and Service and
Department of the Interior policies and procedures. 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 identifying information--may be
made publicly available at any time. While you can ask us to withhold
your personal identifying information from public review, we cannot
guarantee that we will be able to do so. All submissions from
organizations or businesses, and from individuals identifying
themselves as representatives or officials of organizations or
businesses, will be made available for public disclosure in their
entirety.
Authority
We provide this notice under the authority of section 10(c) of the
ESA and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA
(42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR
1506.6).
Amy L. Lueders,
Regional Director, Southwest Region, U.S. Fish and Wildlife Service.
[FR Doc. 2021-07475 Filed 4-13-21; 8:45 am]
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