[Federal Register Volume 78, Number 42 (Monday, March 4, 2013)]
[Notices]
[Pages 14111-14114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04888]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2012-N263; FXES11150200000F4-123-FF02ENEH00]


Final Candidate Conservation Agreement With Assurances, Final 
Environmental Assessment, and Finding of No Significant Impact; Lesser 
Prairie Chicken, Oklahoma

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), make 
available the final Agricultural Candidate Conservation Agreement with 
Assurances (CCAA) for the lesser prairie chicken (Tympanuchus 
pallidicinctus) (LEPC) in Oklahoma, as well as the final environmental 
assessment (EA) and the draft Finding of No Significant Impact (FONSI) 
under the National Environmental Policy Act of 1969 (NEPA). The 
Oklahoma Department of Wildlife Conservation (ODWC) applied for an 
enhancement of survival permit pursuant to Section 10(a)(1)(A) of the 
Endangered Species Act of 1973, as amended (Act). The permit 
application included a draft CCAA between the Service and ODWC for the 
Lesser Prairie Chicken (LEPC) in 14 Oklahoma counties. Our decision is 
to authorize the issuance of an enhancement of survival permit to the 
ODWC for implementation of the CCAA (Preferred Alternative described 
below).

DATES: We will issue a FONSI and make a final permit decision after 
publication of this notice.

ADDRESSES: For where to view documents, see Availability of Documents 
in SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Ms. Dixie Porter, Ph.D., Field 
Supervisor, by U.S. mail at U.S. Fish and Wildlife Service, 9014 East 
21st Street, Tulsa, OK 74129, or by telephone at 918-581-7458.

SUPPLEMENTARY INFORMATION: We announce the availability of the final 
CCAA for the LEPC in Oklahoma, final EA, and FONSI, which we developed 
in compliance with the agency decision-making requirements of the NEPA. 
All alternatives have been described in detail, evaluated, and analyzed 
in our December 2012 final EA and the final CCAA.
    Based on our review of the alternatives and their environmental 
consequences as described in our final EA, we have selected Alternative 
2, the proposed agricultural CCAA for the LEPC in Oklahoma. The 
proposed Federal action is the issuance of a section 10(a)(1)(A) 
enhancement of survival permit to the ODWC and resulting implementation 
of the CCAA for the conservation of the LEPC in Oklahoma. With the 
assistance of the Service, the ODWC would implement conservation 
measures for the LEPC by removing threats to the survival of these 
species and protecting their habitat. The CCAA would be in effect for 
25 years in Alfalfa, Beaver, Beckham, Cimarron, Custer, Dewey, Ellis, 
Harper, Major, Roger Mills, Texas, Washita, Woods, and Woodward 
Counties, Oklahoma. This area constitutes the CCAA's Planning Area, 
with Covered Areas being eligible non-Federal lands within the Planning 
Area that provide suitable habitat for LEPC, or have the potential to 
provide suitable LEPC habitat with the implementation of conservation 
management practices. The CCAA is in addition to a larger conservation 
effort for the LEPC across its range within Texas, Oklahoma, Colorado, 
Kansas, and New Mexico. The CCAA was developed in support of a section 
10(a)(1)(A) enhancement of survival permit.
    ODWC will enroll participating landowners through issuance of 
Certificates of Inclusion pursuant to the CCAA. Participating 
landowners who are fully implementing the CCAA provisions of the 
enhancement of survival permit will be provided assurances that, should 
the LEPC be listed, the Service will not require them to provide 
additional land, water, or financial resources, nor will there be any 
further restrictions to their land, water, or financial resources than 
those they committed to under the CCAA provisions. The CCAA provisions 
are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) 
and 17.32(d). Furthermore, if the LEPC is listed, participating 
landowners would be provided incidental take authorization under the 
enhancement of survival permit for the level of incidental take on the 
enrolled lands consistent with the activities under the CCAA 
provisions. The proposed term of the CCAA is 25 years from the date the 
CCAA is signed by ODWC and the Service. The permit will become 
effective on the date of a final rule that lists the LEPC as threatened 
or endangered and will continue through the end of the CCAA term.

Background

    The LEPC currently occurs in five States: Colorado, Kansas, New 
Mexico, Oklahoma, and Texas. The species inhabits rangelands dominated 
primarily by shinnery oak-bluestem and sand sagebrush-bluestem 
vegetation types. Major factors affecting the status of the LEPC are 
habitat fragmentation, overutilization by domestic livestock, oil and 
gas development, wind energy development, loss of native rangelands to 
cropland conversion, herbicide use, fire suppression, and drought. In 
1998, the Service determined that listing of the LEPC was warranted but 
precluded because of other higher priority species. The December 2008 
Candidate Notice of Review elevated the listing priority of the LEPC 
from an ``8'' to a ``2'' because the overall magnitude of threats to 
the LEPC were increasing and occurring throughout almost all of the 
currently occupied range.
    The Service worked with the ODWC on the development of the CCAA for 
the LEPC in the State of Oklahoma. The CCAA was initiated in order to 
facilitate conservation and restoration of the LEPC on private and 
State trust lands in

[[Page 14112]]

Oklahoma. Expected conservation benefits for the LEPC from 
implementation of the conservation measures in this CCAA will be 
recognized through improved population performance. Specifically, this 
will entail expected increases in adult and juvenile survivorship, nest 
success, and recruitment rates.
    Furthermore, LEPC conservation will be enhanced by providing 
regulatory assurances for participating landowners. With the issuance 
of the permit, the Service would provide assurances to ODWC and 
participating landowners that no additional conservation measures would 
be required beyond those specified in the CCAA should the species 
become listed in the future as long as ODWC and participating 
landowners implement and maintain the conservation measures specified 
in the CCAA in good faith through the duration of the CCAA. There will 
be a measure of security for participating landowners in the knowledge 
that they will not incur additional land use restrictions if the 
species is listed under the Act.
    The ODWC has committed to guiding the implementation of the CCAA 
and requests issuance of the enhancement of survival permit in order to 
address the take prohibitions of section 9 of the Act should the 
species become listed in the future. The permit would authorize 
incidental take associated with implementation of conservation 
commitments and measures described in the CCAA and existing land uses, 
primarily agricultural operations, and other covered activities on the 
enrolled properties.
    The Secretary of the Interior has delegated to the Service the 
authority to approve or deny a section (10)(a)(1)(A) permit in 
accordance with the Act. To act on ODWC's permit application, we must 
determine that the CCAA meets the issuance criteria specified in the 
Act and at 50 CFR 17.22 and 17.32. The issuance of a section 
(10)(a)(1)(A) permit is a Federal action subject to NEPA compliance, 
including the Council on Environmental Quality Regulations for 
Implementing the Procedural Provisions of NEPA (40 CFR 1500-1508). The 
draft CCAA and application for the enhancement of survival permit were 
not eligible for categorical exclusion under NEPA.
    On June 25, 2012 (77 FR 37917), we issued a draft EA and requested 
public comment on our evaluation of the potential impacts associated 
with issuance of a permit for implementation of the CCAA and to 
evaluate alternatives, along with the draft CCAA. We included public 
comments and responses associated with the draft EA and draft CCAA in 
an appendix to the final EA.

Purpose and Need

    The purpose of the CCAA is to conserve the ecosystems depended upon 
by the LEPC in such a way as to potentially preclude the need to list 
this species under the Act. This purpose, under the CCAA, would be 
accomplished through the voluntary involvement of participating 
landowners who are willing to protect, maintain, enhance, and develop 
the habitats necessary for the survival and conservation of LEPC within 
the planning area. The purpose of the permit is to provide assurances 
to ODWC and participating landowners that no additional conservation 
measures would be required beyond those specified in the CCAA should 
the species become listed in the future, as long as ODWC implements and 
maintains the conservation measures specified in the CCAA in good faith 
through the duration of the CCAA and associated permit. Should listing 
of the LEPC occur, the permit would authorize incidental take 
associated with implementation of conservation commitments and measures 
described in the CCAA, as well as existing land uses, primarily 
agricultural operations, and other covered activities on the enrolled 
properties.
    The CCAA and permit are needed to protect and conserve the LEPC 
through reducing threats that this species faces while providing a 
mechanism to authorize incidental take of the LEPC, should it be listed 
pursuant to the Act, for the participating landowners who voluntarily 
enroll their property and continue conservation activities under the 
permit.
    The Service identified key issues and relevant factors through 
public scoping, working with other agencies and groups, and reviewing 
comments from the public. We received 13 comments from eight responders 
during the public comment period. Three of the comments had reference 
to the draft EA and 10 referenced the CCAA. The Service's responses to 
comments are summarized in Appendix A of the final EA. We believe 
comments are addressed and reasonably accommodated in the final 
documents. No new significant issues arose following publication of the 
draft documents.

Alternatives

    Alternative 1 (No Action): In the No Action Alternative, the 
Service would not approve the draft CCAA nor issue the associated 
section 10(a)(1)(A) enhancement of survival permit. Therefore, a 
programmatic effort to reduce threats through enrollment of private 
landowners by ODWC that provides regulatory assurances through a 
section 10(a)(1)(A) permit of the Act and its implementing regulations, 
policy, and guidance for CCAAs would not be available. Individual 
actions and smaller efforts could be undertaken, but the major 
incentive for landowners to conserve a candidate species such as LEPC 
would not be in place. The No Action alternative provides the baseline 
for comparing the environmental effects of the preferred alternative.
    Alternative 2 (Preferred Alternative): Our selected alternative is 
the proposed CCAA, the preferred alternative, as described in the final 
EA, which provides for the issuance of a permit pursuant to section 
10(a)(1)(A) of the Act to the ODWC for incidental take that is 
anticipated to occur as a result of implementing the CCAA as proposed. 
The preferred alternative will provide participating landowners, who 
voluntarily agree to implement conservation measures to restore and/or 
maintain suitable habitat for LEPCs on their property and manage their 
lands to remove threats to the LEPC, regulatory assurances that their 
conservation efforts will not result in future regulatory obligations 
in excess of those they agree to at the time they enter into the CCAA. 
Participating landowners must agree to implement a Wildlife Management 
Plan (WMP) developed by ODWC, which will include a list of conservation 
actions for the LEPC and its habitat. ODWC will enroll participating 
landowners under the CCAA through issuance of Certificates of Inclusion 
(CI), which will serve to link the individual site-specific WMPs to the 
programmatic CCAA and convey the regulatory assurances provided in the 
permit to the participating landowner. The CCAA conservation actions to 
be implemented or maintained are intended to conserve, restore, and/or 
enhance LEPC habitat so that progress toward sustainable population 
levels can occur. Implementation of these actions is also intended to 
reduce any unfavorable impacts to LEPC arising from the management and 
utilization of the enrolled lands. CI applications and the supporting 
ODWC-approved WMPs will address the improvements to be made, sources of 
funding, responsibilities for completion of improvements, a time frame, 
and a monitoring plan to assure the success of improvements. This 
alternative includes implementation of conservation measures to avoid 
and

[[Page 14113]]

minimize the potential incidental take of lesser prairie chicken to the 
maximum extent practicable.

Decision

    We intend to issue an enhancement of survival permit allowing ODWC 
to implement the preferred alternative (Alternative 2), as it is 
described in the final CCAA and EA. Our decision is based on a thorough 
review of the alternatives and their environmental consequences. 
Implementation of this decision entails the issuance of the permit, 
including all terms and conditions governing the permit. Implementation 
of this decision requires that ODWC adhere to the conservation measures 
specified in the CCAA in good faith through the duration of the CCAA 
and permit.

Rationale for Decision

    We have selected the preferred alternative (Alternative 2) for 
implementation based on multiple environmental and social factors, 
including potential impacts to the LEPC, the benefits to the LEPC that 
are expected to be achieved through implementation of conservation 
actions and measures contained in the CCAA, and social and economic 
considerations. We did not choose the No Action Alternative, because, 
under it, a programmatic effort to reduce threats to the LEPC through 
enrollment of private landowners by ODWC that provides assurances 
through section 10(a)(1)(A) of the Act and its implementing 
regulations, policy, and guidance for CCAAs would not be available. 
Individual actions and smaller efforts could be undertaken, but the 
major incentive for landowners to conserve a candidate species such as 
the LEPC would not be in place, and these smaller efforts would be 
incapable of providing comprehensive or comparable net benefits as 
compared to those under the preferred alternative.
    In order for us to issue a permit, we must ascertain that the CCAA 
meets the issuance criteria set forth in 16 U.S.C.1539(a)(2)(A) and 
(B). In addition, we must determine that the applicant has met all 
issuance criteria for the permit contained in 50 CFR 17.22(d)(1) and 
17.32(d)(1). We have made our determination based on the criteria 
summarized below:
    1. The taking will be incidental. We find that the take of LEPC 
would be incidental to otherwise lawful activities. ODWC will implement 
the CCAA, and participating landowner activities will include 
implementation of conservation commitments and measures described in 
the CCAA and land uses, primarily agricultural activities, on the 
enrolled properties. Incidental take authorized under the permit would 
be in the forms of harassment, harm, and mortality associated with the 
conservation (e.g., prescribed burning, prescribed grazing, upland 
wildlife habitat management, and conservation cover) and monitoring 
activities necessary to implement the CCAA. Incidental take also is 
anticipated to occur on enrolled lands as a result of ongoing 
otherwise-lawful agricultural operations (e.g., crop cultivation and 
harvesting, livestock grazing, and farm equipment operation), 
recreational activities (e.g., hunting of other species, dog training, 
hiking, camping, vehicle use, viewing of LEPCs or other wildlife, and 
other similar activities), and limited construction (e.g., construction 
of a storage building/barn; installation of overhead power lines to a 
house; or expansion, renovation, or rebuilding of a house).
    2. The CCAA complies with the requirements of the CCAA policy. The 
ODWC has developed the CCAA and permit application pursuant to the 
requirements in the implementing regulations and the issuance criteria 
for a permit. Conservation benefits for the LEPC from implementation of 
the CCAA are expected in the form of avoidance of negative impacts; 
reduction of threats; and conservation, enhancement, and/or restoration 
of habitat intended to contribute to establishing or augmenting and 
maintaining viable populations of LEPCs in Alfalfa, Beaver, Beckham, 
Cimarron, Custer, Dewey, Ellis, Harper, Major, Roger Mills, Texas, 
Washita, Woods, and Woodward Counties. In addition, conservation of 
LEPCs would be enhanced by improving and encouraging cooperative 
management efforts between the ODWC, Service, and participating 
landowners who own, control, or influence LEPC habitat in Oklahoma. 
Also, this CCAA may be used as a model for CCAAs in other parts of the 
LEPC's range to encourage cooperative management and conservation.
    3. The probable direct and indirect effects of any authorized take 
will not appreciably reduce the likelihood of the survival and recovery 
in the wild of any species. The Act's legislative history establishes 
the intent of Congress that this issuance criteria be identical to a 
regulatory finding of no ``jeopardy'' under section 7(a)(2) of the Act. 
As a result, issuance of this section 10(a)(1)(A) permit was reviewed 
by the Service according to provisions of section 7 of the Act. In the 
Intra-Service Section 7 Conference Opinion, incorporated herein by 
reference, the Service concludes that issuance of a permit will not 
jeopardize the continued existence of the LEPC or any other species. 
The taking associated with the implementation of the CCAA will be 
incidental to efforts associated with changes in land use practices and 
conservation actions for LEPCs in their historic range, and gathering 
important biological information necessary to continue conservation 
efforts for the species.
    4. Implementation of the terms of the CCAA is consistent with 
applicable Federal, State, and Tribal laws and regulations. The Service 
is unaware of any law or regulation that would prevent the 
implementation of the CCAA and the accompanying permit. The permit will 
include conditions that revoke the take provisions of the permit if any 
applicable State, Federal, or tribal law or regulation is broken.
    5. Implementation of the terms of the CCAA will not be in conflict 
with any ongoing conservation programs for species covered by the 
permit. The CCAA in Oklahoma for the LEPC furthers ongoing conservation 
activities for the species' conservation, and is essential in 
developing additional conservation agreements within the historic range 
of the LEPC. The Service, Bureau of Land Management, and non-Federal 
landowners developed a CCA and CCAA to implement similar conservation 
measures on Federal and non-Federal lands within seven counties in New 
Mexico. The Service, Texas Parks and Wildlife Department, and non-
Federal landowners also have developed a CCAA to implement conservation 
measures on non-Federal Lands within 50 counties in Texas. This 
combined Oklahoma-Texas-New Mexico effort should provide conservation 
incentives and result in greater success in reducing threats and 
stabilizing the status of LEPC.
    6. The Applicant has shown capability for and commitment to 
implementing all of the terms of the CCAA. The ODWC has shown the 
ability to administer the CCAA and work effectively with participating 
landowners to implement conservation commitments in the CCAA. The 
funding for implementation will come from several sources and will be 
in place prior to implementation. The ODWC will also have assistance 
from the Service, Natural Resource Conservation Service, LEPC experts, 
and stakeholders in determining the conservation priorities. Based on 
conservation measures described in the CCAA, the Service does not 
expect any circumstances to occur that would preclude the Applicant's 
funding and implementation of the CCAA.

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    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 for the purpose of, otherwise lawful activities.

Availability of Documents

    Electronic copies of the final CCAA and final EA will be available 
on the Service's LEPC Web site, http://www.fws.gov/southwest/es/LPC.html. Alternatively, you may obtain CD-ROMs with electronic copies 
of these documents by writing to Ms. Dixie Porter, Field Supervisor, 
U.S. Fish and Wildlife Service, 9014 East 21st Street, Tulsa, OK 74129; 
calling 918-581-7458; or faxing 918-581-7467. Please refer to TE72923A-
0 when requesting documents. The final CCAA and final EA also are 
available for public inspection, by appointment only, during normal 
business hours (8 a.m. to 4:30 p.m.) at the Tulsa address listed above.
    Persons wishing to review the application or FONSI 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.

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. 4321 et seq.) and its implementing regulations (40 CFR 
1506.6).

    Dated: January 25, 2013.
Benjamin Tuggle,
Regional Director, Southwest Region, Fish and Wildlife Service.
[FR Doc. 2013-04888 Filed 3-1-13; 8:45 am]
BILLING CODE 4310-55-P