[Federal Register Volume 78, Number 32 (Friday, February 15, 2013)]
[Notices]
[Pages 11218-11220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03431]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2012-N294; FXES11120200000F2-134-FF02ENEH00]


Final Environmental Impact Statement and Record of Decision on 
the Edwards Aquifer Recovery Implementation Program Habitat 
Conservation Plan for Incidental Take of 11 Species (8 Federally 
Listed) in 8 Texas Counties

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

ACTION: Notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service, under the National 
Environmental Policy Act of 1969, make available the final 
environmental impact statement (EIS) and record of decision analyzing 
the impacts of the issuance of an incidental take permit for 
implementation of the final Edwards Aquifer Recovery Implementation 
Program (EARIP) Habitat Conservation Plan (HCP). Our decision is to 
issue a 15-year incidental take permit to the EARIP for implementation 
of the preferred alternative (described below), which authorizes 
incidental take of animal species and impacts to plant species listed 
under the Endangered Species Act of 1973, as amended. The EARIP has 
agreed to implement avoidance, minimization, and mitigation measures to 
offset impacts to these species, as described in their HCP.

DATES: We are issuing the Record of Decision (ROD) with this notice, 
and a final permit will not become effective sooner than 30 days after 
publication of this notice. We must receive any comments on the final 
EIS and HCP by March 18, 2013.

ADDRESSES: You may obtain copies of the final documents by going to 
http://www.fws.gov/southwest/es/AustinTexas/. Alternatively, you may 
obtain a compact disk with electronic copies of these documents by 
writing to Mr. Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife 
Service, 10711 Burnet Road, Suite 200, Austin, TX 78758; by calling 
(512) 490-0057; or by faxing (512) 490-0974. Written comments may be 
submitted to Mr. Adam Zerrenner (see address above). For additional 
information about where to review documents, see ``Reviewing 
Documents'' under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Mr. Adam Zerrenner, Field Supervisor, 
U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, 
TX 78758 or (512) 490-0057.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), announce the availability of the final environmental impact 
statement (EIS) and record of decision (ROD), which we developed in 
compliance with the agency decision-making requirements of the National 
Environmental Policy Act of 1969, as amended (NEPA), as well as the 
final Edwards Aquifer Recovery Implementation Program (EARIP) Habitat 
Conservation Plan (HCP) as submitted by the applicants. All 
alternatives have been described in detail, evaluated, and analyzed in 
our December 2012 final EIS and the EARIP HCP. The ROD documents the 
rationale for our decision.
    Based on our review of the alternatives and their environmental 
consequences as described in our final EIS, we have selected 
Alternative 2, the proposed HCP. The proposed action is to issue to the 
EARIP applicants an incidental take permit (ITP) under section 
10(a)(1)(B) of the Endangered Species Act of 1973, as amended (16 
U.S.C. 1531 et seq.), that authorizes incidental take of animal species 
and impacts to plant species. The term of the permit is 15 years (2013-
2028), and would include the following endangered, threatened, and non-
listed species (also referred to as ``covered species''):

Endangered

Texas wild rice (Zizania texana)
Comal Springs riffle beetle (Heterelmis comalensis)
Comal Springs dryopid beetle (Stygoparnus comalensis)
Peck's Cave amphipod (Stygobromus pecki)
Fountain darter (Etheostoma fonticola)
Texas blind salamander (Eurycea [=Typhlomolge] rathbuni)
San Marcos gambusia (Gambusia georgei)

Threatened

San Marcos salamander (Eurycea nana)

Non-listed Species

Texas cave diving beetle (Haideoporus texanus)
Texas troglobitic water slater (Lirceolus smithii)
Comal Springs salamander (Eurycea sp.)

    Take of listed plant species is not defined in the Act, although 
the Act does identify several prohibitions. However, because covered 
species in the EARIP HCP include both plants and animals, in the 
following discussion we use the term ``incidental take'' when 
discussing impacts to covered plants, as well as actual incidental take 
of covered animals.
    The EARIP will implement avoidance, minimization, and mitigation 
measures to offset impacts to the covered species according to their 
HCP. The minimization and mitigation measures include spring flow and 
habitat protection. Spring flow protection measures will ensure that no 
interruption of flow at springs will occur during wet, normal, or 
drought conditions. Habitat protection measures will restore and 
enhance aquatic and riparian habitat in the Comal and San Marcos River 
systems.

Background

    The EARIP has applied for an incidental take permit (TE63663A-0, 
ITP) under the Endangered Species Act of 1973, as amended (Act), that 
would authorize incidental take of animal species and impacts to plant 
species (covered species) in all, or portions, of eight Texas counties. 
The requested ITP, which will be in effect for a period of 15 years, 
will authorize incidental take of seven federally listed animal species 
and impacts to one listed plant species, and would cover three non-
listed species. The proposed incidental take could occur within Bexar, 
Medina, and Uvalde Counties, and portions of Atascosa, Caldwell, Comal, 
Guadalupe, and Hays Counties in Texas (permit area), and would result 
from activities associated with otherwise lawful activities, including 
the regulation and use of groundwater for irrigation, industrial, 
municipal, domestic, and livestock purposes; the use of instream flows 
in the Comal River and San Marcos River for recreational uses; and 
other operational and maintenance activities that could affect Comal 
Springs, San Marcos Springs, and their associated river systems 
(covered activities). The final EIS considers the direct, indirect, and 
cumulative effects of implementation of the HCP, including the measures 
that will be implemented to minimize and mitigate such impacts to the 
maximum extent practicable. Incidental take coverage is also provided 
for any take of covered species that may occur during species 
management and habitat restoration and management activities related to 
the minimization and mitigation proposed within the HCP.
    On July 20, 2012, 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 HCP and to evaluate 
alternatives, along with the draft HCP (77 FR 42756). We included 
public comments and responses associated with the draft EIS and draft 
HCP in the final EIS.

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Purpose and Need

    The purpose of the section 10(a)(1)(B) permit is to authorize 
incidental take associated with the covered activities described above. 
We identified key issues and relevant factors through conducting public 
scoping and public meetings, working with other agencies and groups, 
and reviewing comments from the public. In response to the publication 
of the draft EIS and draft HCP, we received responses from 3 Federal 
agencies, 2 State agencies, and 25 other organizations and individuals. 
The Environmental Protection Agency had ``no objections'' to the 
implementation of the preferred alternative. The National Resources 
Conservation Service agreed with the selection of Alternative 2 as the 
preferred alternative. The National Park Service stated that they had 
no comments. The Texas Commission on Environmental Quality supported 
the selection of the HCP as the preferred alternative. The Texas Parks 
and Wildlife Department stated that they support the HCP and the DEIS, 
and provided minor edits and specific clarifying comments intended to 
improve the documents. Comments from individuals and non-profit 
organizations provided support for the HCP and the EIS selection of the 
preferred alternative. Aside from minor edits or suggested 
clarifications, no substantive comments were received on the draft HCP 
or the draft EIS.

Alternatives

    We considered four alternatives in the EIS.
    Alternative 1--No action Alternative: Under the No Action 
Alternative, the Service would not issue an incidental take permit for 
the EARIP HCP.
    Alternative 2--Preferred Alternative: Our selected alternative is 
the proposed HCP with a 15-year term, and the preferred alternative as 
described in the final EIS, which provides for the issuance of an ITP 
to the EARIP Applicants for incidental take of covered species that may 
occur as a result of covered activities. This alternative includes a 
number of measures to maintain or manage springflow, including Critical 
Period Management (CPM) pumping restrictions, management of an Aquifer 
Storage and Recharge (ASR) facility to meet water demand that offsets 
reduced pumping from the Edwards Aquifer near the springs during 
drought, a Voluntary Irrigation Suspension Program that provides 
economic incentives to reduce pumping for irrigated agriculture during 
drought conditions, and a Regional Water Conservation Program. The HCP 
also provides for habitat restoration and management measures that 
minimize and mitigate impacts from the potential incidental take to the 
maximum extent practicable.
    Alternative 3--Expanded ASR Program: This alternative would result 
in the construction of new infrastructure to inject water stored in an 
expanded ASR into the aquifer to maintain springflow. It includes 
issuance of an ITP and implementation of an HCP incorporating expanded 
aquifer storage and recharge actions and CPM pumping restrictions to 
achieve springflow and covered species protections.
    Alternative 4--Highest Pumping Restriction: Alternative 4 would 
implement the most restrictive pumping regulations to maintain spring 
flows protective of the covered species.

Decision

    We intend to issue an ITP to the EARIP applicants for 
implementation of the preferred alternative (Alternative 2) as it is 
described in the HCP. Our decision is based on a thorough review of the 
alternatives and their environmental consequences. Implementation of 
this decision entails issuance of the ITP by the Service and full 
implementation of the HCP by the EARIP, including minimization and 
mitigation measures, monitoring and adaptive management, and complying 
with all terms and conditions in the ITP.

Rationale for Decision

    We have selected the preferred alternative (Alternative 2) for 
implementation based on multiple environmental and social factors, 
including potential impacts and benefits to covered species and their 
habitats; the extent and effectiveness of avoidance, minimization, and 
mitigation measures; and social and economic considerations. We did not 
choose the No Action Alternative, because, as compared with the 
preferred alternative, it does not protect listed species from 
potential take from covered activities. We did not choose the Expanded 
ASR Program (Alternative 3) because of the uncertainties related to the 
effectiveness of the Expanded ASR Program regarding effects to listed 
species and the economic impacts to water users throughout the region 
are greater than those anticipated under Alternative 2. Alternative 4 
would curtail pumping more than the preferred alternative, causing the 
greatest economic impact on water users of any of the alternatives, and 
was therefore not selected.
    In order to issue an ITP we must ascertain that the HCP meets the 
issuance criteria set forth in 16 U.S.C. 1539(a)(2)(A) and (B). We have 
made that determination based on the criteria summarized below.
    1. The taking will be incidental. We find that take will be 
incidental to otherwise lawful activities, including the applicants' 
regulation of groundwater, use of surface water for recreational 
activities, and the operation and maintenance of facilities to withdraw 
and convey groundwater.
    2. The applicants will, to the maximum extent practicable, minimize 
and mitigate the impacts of such takings. The EARIP has developed and 
is committed to implementing a program that includes a variety of 
habitat and springflow protection measures. These measures will ensure 
that water continues to flow from springs to protect species that rely 
on the flow of water for their survival.
    3. The applicants will develop an HCP and ensure that adequate 
funding for the HCP will be provided. The applicants have developed an 
HCP, which includes a detailed estimate of the costs of implementing 
the HCP (see Chapter 7 of the HCP). The funding necessary to pay for 
implementing the HCP will come from water user fees and from other 
sources, including several municipalities that benefit from HCP 
implementation, but are not assessed water user fees.
    4. The taking will not appreciably reduce the likelihood of 
survival and recovery of any listed species in the wild. As the Federal 
action agency considering whether to issue an ITP to the EARIP, we have 
reviewed the proposed action under section 7 of the Act. Our biological 
opinion, dated January 3, 2013, concluded that issuance of the ITP will 
not jeopardize the continued existence of the covered species in the 
wild. No areas designated as critical habitat will be adversely 
modified. The biological opinion also analyzes other listed species 
within the planning area and concludes that the direct and indirect 
effects from implementation of the HCP will not appreciably reduce the 
likelihood of survival and recovery of other listed species or 
adversely modify any designated critical habitat within the permit 
area.
    5. The applicants agree to implement other measures that the 
Service requires as being necessary or appropriate for the purposes of 
the HCP. We have assisted the EARIP in the development of the HCP. We 
commented on draft documents, participated in numerous meetings, and 
worked closely with the

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EARIP throughout the development of the HCP so conservation of covered 
species would be assured and recovery would not be precluded by the 
covered activities. The HCP incorporates our recommendations for 
minimization and mitigation of impacts, as well as steps to monitor the 
effects of the HCP and ensure success. Annual monitoring, as well as 
coordination and reporting mechanisms, have been designed to ensure 
that changes in the conservation measures can be implemented if 
proposed measures prove ineffective (adaptive management).
    We have determined that the preferred alternative best balances the 
protection and management of habitat for covered species, while 
providing compliance with the Act for withdrawal and use of Edwards 
Aquifer water in the permit area. Considerations used in this decision 
include whether (1) mitigation will benefit the covered species, (2) 
adaptive management of the conservation measures will ensure that the 
goals and objectives of the HCP are realized, (3) conservation measures 
will protect and enhance habitat, (4) mitigation measures for the 
covered species will fully offset anticipated impacts to species and 
provide recovery opportunities, and (5) the HCP is consistent with the 
covered species' recovery plans.
    A final permit decision will be made no sooner than 30 days after 
the publication of this notice of availability.

Reviewing Documents

    You may obtain copies of the final EIS, ROD, and final HCP by going 
to http://www.fws.gov/southwest/es/AustinTexas/. Alternatively, you may 
obtain a compact disk with electronic copies of these documents by 
writing to Mr. Adam Zerrenner, Field Supervisor, U.S. Fish and Wildlife 
Service, 10711 Burnet Road Suite 200, Austin, TX 78758; by calling 
(512) 490-0057; or by faxing (512) 490-0974. A limited number of 
printed copies of the final EIS and final HCP are also available, by 
request, from Mr. Zerrenner. Copies of the final EIS and final HCP are 
also available for public inspection and review at the following 
locations (by appointment only):
     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 
6034, Albuquerque, NM 87102.
     U.S. Fish and Wildlife Service, 10711 Burnet Road Suite 
200, Austin, TX 78758.
    Persons wishing to review the application may obtain a copy by 
writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. 
Box 1306, Room 6034, 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, 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 publically available 
at any time. While you can request in your comment that we withhold 
your personal identifying information from public review, we cannot 
guarantee that we will be able to do so. We will not consider anonymous 
comments. 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 section 10(c) of the Act 
(16 U.S.C. 1531 et seq.) and its implementing regulations (50 CFR 
17.22 and 17.32), and the National Environmental Policy Act (42 
U.S.C. 4321 et seq.) and its implementing regulations (40 CFR part 
1506.6).

Joy E. Nicholopoulos,
Acting Regional Director, Southwest Region, Albuquerque, New Mexico.
[FR Doc. 2013-03431 Filed 2-14-13; 8:45 am]
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