[Federal Register Volume 76, Number 93 (Friday, May 13, 2011)]
[Notices]
[Pages 28060-28063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11761]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2010-N173; 20124-1112-0000-F2]


Regional Habitat Conservation Plan, Hays County, TX

AGENCY: Fish and Wildlife Service, Department of the Interior.

ACTION: Notice of availability of final environmental impact statement, 
final Hays County regional habitat conservation plan, and draft record 
of decision.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), make 
available the final environmental impact statement (EIS), the final 
Hays County regional habitat conservation plan (RHCP) under the 
National Environmental Policy Act of 1969 (NEPA), and our draft record 
of decision (ROD). Our intended action is the issuance of a 30-year 
incidental take permit (ITP) for the Preferred Alternative (described 
below) under the Endangered Species Act of 1973, as amended (ESA), to 
Hays County, Texas (the County), to incidentally take golden-cheeked 
warbler (Dendroica chrysoparia) and black-capped vireo (Vireo 
atricapilla). Under the RHCP, the County will mitigate for take by 
establishing a preserve system of 10,000-15,000 acres to mitigate for 
incidental take of covered species. Each preserve acquisition will be 
subject to Service approval and will generate mitigation credits based 
on the number of acres and quality of potential occupied habitat for 
the covered species.

DATES: We will issue a ROD and make a final permit decision no sooner 
than 30 days after publication of this notice. Comments on the final 
EIS and RHCP will be accepted for 30 days after publication of this 
notice.

ADDRESSES: For where to review documents and submit comments see 
Reviewing Documents and Submitting Comments in SUPPLEMENTARY 
INFORMATION.

FOR FURTHER INFORMATION CONTACT: Mr. Adam Zerrenner, Field Supervisor, 
Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, 
Austin, TX 78758; telephone 512/490-0057.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), announce the availability of the Hays County final 
environmental impact statement; final regional habitat conservation 
plan, which we developed in compliance with the agency decision-making 
requirements of the National Environmental Policy Act (NEPA) of 1969, 
as amended; and our record of decision. We intend to implement the 
preferred alternative, which is implementation of the RHCP. We have 
described all alternatives in detail, and evaluated and analyzed them 
in our May 2010 final EIS and the final RHCP.
    Based on our review of the alternatives and their environmental 
consequences as described in our final EIS, we intend to implement the 
preferred alternative (the proposed action). The selected proposed 
action is the issuance of a section 10(a)(l)(B) incidental take permit 
(ITP) to Hays County, Texas (the County), for incidental take of 
golden-cheeked warbler (Dendroica chrysoparia) and black-capped vireo 
(Vireo atricapilla). We refer to both species collectively as ``the 
covered species.''
    The term of the permit is 30 years (2011-2041). The County will 
implement mitigation and minimization measures according to the 
schedule in the RHCP. Under the RHCP, the County will mitigate for take 
by establishing a preserve system of 10,000-15,000 acres to mitigate 
for incidental take of covered species. Each preserve acquisition will 
be subject to Service approval and will generate mitigation credits 
based on the number of acres, and quality, of potential occupied 
habitat for the covered species. The number of mitigation credits 
allowed for each

[[Page 28061]]

preserve will be based on, and commensurate with, Service policy and 
guidelines regarding mitigation (such as, but not limited to, the 
Guidance for the Establishment, Use, and Operation of Conservation 
Banks) in order to ensure that the quality of the mitigation is equal 
to or greater than the quality of the habitat impacted.

Background

    The County applied to us for an ITP. As part of the permit 
application, the County developed and will implement the RHCP to meet 
the requirements of an ITP. Our issuance of an ITP would allow the 
County to take the covered species resulting from proposed 
construction, use, or maintenance of public or private land development 
projects; construction, maintenance, or improvement of transportation 
infrastructure; installation or maintenance of utility infrastructure; 
construction, use, or maintenance of institutional projects or public 
infrastructure; and management activities within Hays County, Texas, 
during the 30-year ITP term.
    The Secretary of the Interior has delegated the authority to the 
Service to approve or deny an ITP in accordance with the ESA. To act on 
the County's permit application, we must determine that the RHCP meets 
the approval criteria specified in the ESA, including our regulations 
in the Code of Federal Regulations (CFR) at 50 CFR 17.22 and 17.32. The 
issuance of an ITP is a Federal action subject to NEPA compliance, 
including the Council on Environmental Quality Regulations for 
Implementing the Procedural Provisions of the NEPA (40 CFR 1500-1508).
    On November 2, 2009, we issued a draft EIS and requested public 
comment on our evaluation of the potential impacts associated with 
issuance of an ITP for implementation of the RHCP and to evaluate 
alternatives, along with the draft RHCP (74 FR 56655). We included 
public comments and responses associated with the Draft EIS and Draft 
RHCP in an appendix to the final EIS.

Purpose and Need

    The purpose of the section 10(a)(l)(B) permit is to authorize 
incidental take associated with the otherwise legal activities listed 
in the background section.
    We identified key issues and relevant factors through public 
scoping and also through working with a Citizens Advisory Committee; 
Biological Advisory Team; and comments from the public. These issues 
included the need for: (1) Development to continue in the County; (2) 
minimization of impacts on covered species; and (3) mitigation of 
impacts on covered species. We thoroughly examined these issues in the 
draft and final EIS and RHCP. No new significant issues arose following 
publication of the draft documents.

Environmentally Preferable Alternative

    Our selected alternative is the Proposed RHCP, the preferred 
alternative (Alternative B) as described in the final EIS. This 
alternative provides for the issuance of an ITP to the County for take 
that would occur as a result of projects described above. This 
alternative includes implementation of RHCP measures to minimize and 
mitigate the potential take of federally listed species to the maximum 
extent practicable. The intent of this alternative is to allow 
continued development in the County; to minimize the biological, 
environmental, and socioeconomic impacts; to satisfy the habitat and 
species needs; and meet issuance criteria of section 10 of the ESA.
    For golden-cheeked warblers, the take associated with direct and 
indirect impacts to 9,000 acres of habitat are authorized over the life 
of the permit. These impacts shall be mitigated by a combination of 
purchasing mitigation credits in nearby conservation banks and by 
purchasing high quality habitat within Hays County for designated 
golden-cheeked warbler preserves. For black-capped vireos, the take 
associated with direct and indirect impacts to 1,300 acres of habitat 
are authorized over the life of the permit. Impacts will be mitigated 
primarily through habitat restoration, habitat management, enhancement 
of existing protected black-capped vireo habitat, or an alternate, 
Service-approved mitigation program.
    We considered three additional alternatives in the final EIS:
    Alternative A (No Action): The No Action alternative assumed that 
we would not issue a regional permit for the County. Although 
development could occur on lands not occupied by endangered species, 
development activities that would cause take of listed species would 
require individual authorizations through section 7 or section 
10(a)(1)(B) of the ESA. Individual entities could also elect to avoid 
take on properties containing endangered species by avoiding direct and 
indirect impacts on the species (i.e., take-avoidance). Processing 
individual section 10(a) permits could cause delays in permit issuance, 
because we often take 1 to 2 years to process an individual permit.
    Alternative C (Moderate Preserve System with a Take Limit): 
Compared with that under Alternative B, this alternative features the 
acquisition of a modestly sized, pre-determined preserve system and 
limits the amount of incidental take that would be authorized by the 
ITP. This alternative illustrates a conservation program that could be 
relatively easy for the County to afford, but (due to relatively 
smaller size of the preserve system compared to the proposed RHCP) 
might not satisfy the anticipated need for incidental take 
authorization over the duration of the plan.
    Alternative D (Large-scale Preserve System): Compared with that 
under Alternative B, this alternative involves a conservation program 
that utilizes a pre-determined preserve approach. Under this 
alternative, the preserve system would be large enough to authorize the 
incidental take of any remaining golden-cheeked warbler or black-capped 
vireo habitat in the County, outside of the target acquisition area of 
the preserve system, during the duration of the plan.

Decision

    We intend to issue an ITP allowing the County to implement the 
preferred alternative (Alternative B), as it is described in the final 
EIS. This intention is based on a thorough review of the alternatives 
and their environmental consequences. Implementation of this decision 
entails the issuance of the ITP, including all terms and conditions 
governing the permit. Implementation of this decision requires 
adherence to all of the minimization and mitigation measures specified 
in the RHCP, as well as monitoring and adaptive management measures.

Rationale for Decision

    We intend to select the preferred alternative (Alternative B) for 
implementation based on multiple environmental and social factors, 
including potential impacts and benefits to covered species and their 
habitat, the extent and effectiveness of minimization and mitigation 
measures, and social and economic considerations.
    In order for us to be able to issue an ITP, we must ascertain that 
the RHCP meets the criteria set forth in 16 U.S.C. 1539(a)(2)(A) and 
(B). We have made that determination. These criteria, and how the RHCP 
satisfies these criteria, are summarized below:
    1. The taking will be incidental. We find that the take will be 
incidental to otherwise lawful activities, including the proposed 
construction, use, or maintenance of public or private land

[[Page 28062]]

development projects; construction, maintenance, or improvement of 
transportation infrastructure; installation or maintenance of utility 
infrastructure; construction, use, or maintenance of institutional 
projects or public infrastructure; and management activities. The take 
of individuals of covered species will be primarily due to habitat 
destruction and/or alteration.
    2. The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such takings. The County has committed to a 
wide variety of conservation measures, land acquisition, management 
activities, monitoring, adaptive management, and other strategies 
designed to avoid and minimize harm to the covered species and mitigate 
for any unavoidable loss. Impacts to the covered species will be 
minimized and mitigated as described in the environmentally preferable 
alternative section above.
    3. The applicant will develop an HCP and ensure that adequate 
funding for the HCP will be provided. The County has developed the RHCP 
and committed to fully funding all of the obligations necessary for its 
implementation. These obligations include the cost for purchase and 
management of golden-cheeked warbler and black-capped vireo, mitigation 
lands in perpetuity, enforcement of conservation easements, and 
monitoring of species populations and habitat. In addition, the County 
has committed to implement adaptive management measures that: identify 
areas of uncertainty and questions that need to be addressed to resolve 
such uncertainty; developed alternative management strategies and 
determine which experimental strategies to implement; integrate a 
monitoring program that is able to acquire the necessary information 
for effective strategy evaluation; and incorporate feedback loops that 
link implementation and monitoring to the decision-making process that 
result in appropriate changes in management. To accomplish RHCP 
implementation, the County estimated that costs could total up to 
$182.6 million. The County will fund the actual costs of implementing 
the RHCP by application and mitigation fees, the County General 
maintenance and operations fund contributions, and the County 
Conservation Investments.
    The Service's No Surprises Assurances are discussed in the RHCP, 
and measures to address changed and unforeseen circumstances have been 
identified. Adaptive management in the form of conservation, 
mitigation, or management measures and monitoring will be implemented 
to address changed circumstances over the life of the permit that were 
able to be anticipated at the time of RHCP development. Unforeseen 
circumstances would be addressed through the Service's close 
coordination with the County in the implementation of the RHCP. The 
County has committed to a coordination process to address such 
circumstances.
    We have, therefore, determined that the County's financial 
commitment and plan, along with the County's willingness to address 
changed and unforeseen circumstances in a cooperative fashion, is 
sufficient to meet this criterion.
    4. The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. As the Federal action 
agency considering whether to issue an ITP to the County, we have 
reviewed the issuance of the ITP under section 7 of the ESA. Our 
biological opinion concluded that issuance of the ITP will not 
jeopardize the continued existence of the golden cheeked warbler and 
black capped vireo in the wild. No critical habitat has been designated 
for either of the covered species, and thus none will be affected.
    5. The applicant agrees to implement other measures that the 
Service requires as being necessary or appropriate for the purposes of 
the HCP. We have cooperated with the County in the development of the 
RHCP. We commented on draft documents, participated in advisory group 
meetings, and worked closely with the County in every step of plan and 
document preparation, so that conservation of the covered species would 
be assured and recovery would not be jeopardized. The RHCP incorporates 
our recommendations for minimization and mitigation of impacts, as well 
as steps to monitor the effects of the RHCP and ensure success. Annual 
monitoring, as well as coordination and reporting mechanisms, have been 
designed to ensure that changes in conservation measures can be 
implemented if measures prove ineffective or impacts exceed estimates. 
It is our position that no additional measures are required to 
implement the intent and purpose of the RHCP to those detailed in the 
RHCP and its associated ITP.
    We have determined that the preferred alternative best balances the 
protection and management of suitable habitat for covered species, 
while allowing and providing a streamlined process for ESA compliance 
for continued development in Hays County. Considerations used in this 
decision include: (1) Mitigation will benefit the golden cheeked 
warbler and black capped vireo, mitigation lands will be managed for 
the species in perpetuity, and other conservation measures will protect 
and enhance habitat; (2) mitigation measures for the covered species 
will fully offset anticipated impacts of development to the species and 
provide recovery opportunities; and (3) the RHCP is consistent with the 
golden cheeked warbler and black capped vireo recovery plans.
    Section 9 of the Act and its implementing regulations prohibit the 
``taking'' of threatened or endangered species. However, under limited 
circumstances, we may issue permits to take listed wildlife species 
incidental to, and not the purpose of, otherwise lawful activities.

Reviewing Documents and Submitting Comments

    Please refer to TE-220793-0 when requesting documents or submitting 
comments. You may obtain copies of the final EIS and final RHCP by 
going to the Hays County Regional Habitat Conservation Plan Web site at 
http://hayscountyhcp.com/documents. Alternatively, you may obtain 
compact disks with electronic copies of these documents, as well as the 
draft ROD, by writing to Mr. Adam Zerrenner, Field Supervisor, 10711 
Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057; 
facsimile 512-490-0974. The application, final RHCP, final EIS, and 
draft ROD will also be available for public inspection, by appointment, 
during normal business hours (8 a.m. to 4:30 p.m.) at the Austin 
office. During the public comment period (see DATES), submit your 
written comments or data to the Field Supervisor at the Austin address.
    Public comments submitted are available for public review at the 
Austin address listed above. This generally means that any personal 
information you provide us will be available to anyone reviewing the 
public comments (see the Public Availability of Comments section below 
for more information).
    A limited number of printed copies of the final EIS and final RHCP 
are also available for public inspection and review at the following 
locations (by appointment only at government offices):
     Department of the Interior, Natural Resources Library, 
1849 C. St., NW., Washington, DC 20240;
     U.S. Fish and Wildlife Service, 500 Gold Avenue, SW., Room 
4012, Albuquerque, NM 87102;
     San Marcos Public Library, 625 E. Hopkins Street, San 
Marcos, TX, 78666-6313;

[[Page 28063]]

     Hays County Precinct 3 Office, 14306 Ranch Rd 12, 
Wimberley, TX; 78676, and
     Hays County Precinct 4 Office, 101 Old Fitzhugh Rd, 
Dripping Springs, TX, 78620.
    Persons wishing to review the application or draft ROD may obtain a 
copy by writing to the Regional Director, U.S. Fish and Wildlife 
Service, P.O. Box 1306, Room 4012, Albuquerque, NM 87103.

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. Before including your address, phone 
number, e-mail address, or other personal identifying information in 
your comment, you should be aware that the 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.

Authority

    We provide this notice under section 10(c) of the Act (16 U.S.C. 
1531 et seq.) and its implementing regulations (50 CFR 17.22) and NEPA 
(42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR 
1506.6).

    December 7, 2010.
Joy E. Nicholopoulos,
Acting Regional Director, Region 2, Albuquerque, New Mexico.
[FR Doc. 2011-11761 Filed 5-12-11; 8:45 am]
BILLING CODE 4310-55-P