[Federal Register Volume 79, Number 12 (Friday, January 17, 2014)]
[Notices]
[Pages 3221-3223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-00593]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2012-N208; FXES11120200000F2-145-FF02ENEH00]


Final Environmental Impact Statement and Record of Decision on 
Comal County's Regional Habitat Conservation Plan for Comal County, 
Texas

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.

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SUMMARY: We, the U.S. Fish and Wildlife Service, make available the 
final environmental impact statement (FEIS), draft record of decision 
(ROD), and final Comal County regional habitat conservation plan (RHCP) 
under the National Environmental Policy Act of 1969 (NEPA). Our 
decision is to issue a 30-year incidental take permit to Comal County, 
Texas, for implementation of the Preferred Alternative (described 
below), which authorizes incidental take of the endangered golden-
cheeked warbler and black-capped vireo, both of which are listed under 
the Endangered Species Act of 1973, as amended (ESA). Comal County has 
agreed to implement avoidance, minimization, and mitigation measures to 
offset impacts to these species, as described in their RHCP.

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, draft ROD, and RHCP will be accepted until February 18, 2014.

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, 
U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, 
TX 78758 or (512) 490-0057.

SUPPLEMENTARY INFORMATION: We announce the availability of the Comal 
County final Environmental Impact Statement, final regional habitat 
conservation plan, and draft record of decision, which we developed in 
compliance with the agency decision-making requirements of the NEPA, as 
amended (42 U.S.C. 4321 et seq.). All alternatives have been described 
in detail, evaluated, and analyzed in our August 2013 final EIS and 
Comal County's RHCP.
    Based on our review of the alternatives and their environmental 
consequences as described in our final EIS, we have selected 
Alternative B, the proposed RHCP. The proposed action is the issuance 
to Comal County of a section 10(a)(1)(B) incidental take permit (ITP) 
(under the ESA (16 U.S.C. 1531 et seq.)), which authorizes incidental 
take of the endangered golden-cheeked warbler (Dendroica chrysoparia; 
GCWA) and black-capped vireo (Vireo atricapilla; BCVI) (collectively, 
covered species). The term of the permit is 30 years (2013-2043).
    Comal County will implement avoidance, minimization, and mitigation 
measures to offset impacts to Covered Species according to their RHCP. 
Impacts will be mitigated through the purchase of preserves by Comal 
County, which would generate credits; purchasing credits from a 
Service-approved conservation bank; or working with willing landowners 
or private entities to create preserves, which would generate credits. 
Each preserve acquisition will be subject to Service approval and will 
generate mitigation credits based on number of acres, and quality of 
potential occupied habitat for covered species. All preserves and 
credits will be approved by the Service and will generate mitigation 
credits based on, and commensurate with, Service policy and guidelines 
regarding mitigation (such as, but not limited to, the guidance found 
in Establishment, Use, and Operation of Conservation Banks [68 FR 
24753]) in order to ensure that the quality of the mitigation is equal 
to or greater than the quality of the habitat impacted.

Background

    Comal County applied to the Service for an ITP. As part of the 
permit application, Comal County developed the RHCP to meet the 
requirements of an ITP. Our issuance of an ITP and implementation of 
the RHCP would allow Comal County to take the covered species 
incidentally, during 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 (covered activities) within Comal County, Texas 
(plan area), during the 30-year term of the ITP.
    The Secretary of the Interior has delegated to the Service the 
authority to approve or deny an ITP in accordance with the ESA. To act 
on Comal County's permit application, we must determine that the RHCP 
meets the issuance

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criteria specified in the ESA and 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 NEPA (40 CFR parts 1500-1508).
    On June 3, 2010, 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 (75 FR 31463). We included public comments 
and responses associated with the draft EIS and draft HCP in an 
appendix to the final EIS.

Purpose and Need of Permit

    The purpose of the section 10(a)(l)(B) permit is to authorize 
incidental take associated with the covered activities described above. 
We identified key issues and relevant factors through public scoping, 
working with other agencies and groups, and comments from the public. 
We received a response from one Federal agency, the U.S. Environmental 
Protection Agency, who had ``no objections'' to implementation of the 
Preferred Alternative. Most of the comments received from the public 
focused on: (1) The process of the RHCP and how it may expedite certain 
projects (e.g., roads and quarry operations) that impact GCWA habitat, 
(2) the difficulties and decisions involved with modeling and 
quantifying GCWA habitat, (3) the potential occurrence of listed 
invertebrates in the plan area, and (4) the alleged lack of 
documentation ensuring impacts to the Covered Species will be minimized 
and mitigated to the maximum extent practicable. One comment letter 
supported the RHCP as proposed. We believe these comments are addressed 
and reasonably accommodated in the final documents. No new significant 
issues arose following publication of the draft documents.

Alternatives

    Alternative A (No Action): Under the No Action alternative, Comal 
County would not request and the Service would not issue an ITP. 
Instead, development activities in Comal County that would cause take 
of listed species would require individual authorizations through 
section 10(a)(1)(B) or section 7 consultation where a Federal nexus 
(authorized by a Federal agency [e.g., section 404 permit under the 
Clean Water Act]) exists, on a project-by-project basis over the next 
30 years.
    Alternative B (Preferred Alternative): Our selected alternative is 
the proposed RHCP, the preferred alternative, as described in the final 
EIS, which provides for the issuance of an ITP to Comal County for 
incidental take that is anticipated to occur as a result of covered 
activities. This alternative includes implementation of measures to 
avoid, minimize, and mitigate for the potential incidental take of 
federally listed species to the maximum extent practicable. This 
alternative also provides conservation measures for Covered Species and 
the mechanism for streamlined compliance with the Act.
    Alternative C (Reduced Take RHCP): Compared to Alternative B, this 
alternative (1) eliminates the BCVI as a Covered Species, (2) reduces 
the areal extent of covered take for GCWA, and (3) reduces funding for 
the research and public awareness programs, the endowment, and the 
preserve system.

Decision

    We intend to issue an ITP allowing Comal County to implement the 
preferred alternative (Alternative B), as it is described in the final 
EIS. Our decision 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 have selected 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. We did not choose the 
No Action Alternative, because a project-by-project approach for 
complying with the Act would be more time-consuming and less efficient, 
and would result in piecemeal mitigation for covered species, incapable 
of providing comprehensive or comparable net benefits with respect to 
the preferred alternative. We did not choose the Reduced Take 
Alternative, because we do not believe that the amount of take 
requested is sufficient for the permit duration.
    In order for us to issue an ITP, we must ascertain that the RHCP 
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 the take will be 
incidental to otherwise lawful activities, including the 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. The take of individuals of 
covered species will be primarily due to indirect impacts of 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 take of the covered species and mitigate 
for any unavoidable loss. Mitigation will be commensurate with the 
actual level of take. Comal County will ensure compliance with the 
avoidance, minimization, and conservation measures through on-the-
ground habitat assessments, making available to the public maps of 
potential habitat; requiring RHCP participants to abide by the seasonal 
clearing restrictions to avoid immediate impacts to GCWAs and BCVIs 
during their breeding seasons; and developing a public education and 
outreach program to educate landowners and residents about GCWAs, 
BCVIs, and the RHCP.
    3. The applicant will develop an HCP and ensure that adequate 
funding for the HCP will be provided. Comal County has developed and 
will implement the RHCP. These obligations include the cost for 
purchase and management of 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; identify 
alternative management strategies and how to 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. The County will fund the 
cost of

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implementing the RHCP with application and mitigation fees, County 
General Maintenance and Operations fund contributions, and County 
Conservation Investments.
    The Service's no surprises assurances, changed circumstances, and 
unforeseen circumstances are discussed in Chapter 8 of the RHCP. 
Unforeseen circumstances would be addressed through the Service's close 
coordination with Comal County in the implementation of the RHCP, and 
the County has committed to a coordination process to address such 
circumstances. Adaptive management, Chapter 6 of the RHCP, will be used 
to direct changes to conservation, mitigation, or management measures 
and monitoring when needed. We have, therefore, determined that Comal 
County's financial commitment and plan, along with their 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 any listed species in the wild. As the Federal 
action agency considering whether to issue an ITP to Comal County, we 
have reviewed the proposed action under section 7 of the Act. Our 
biological opinion, dated August 1, 2013, concluded that issuance of 
the ITP will not jeopardize the continued existence of the covered 
species in the wild. No critical habitat has been designated for either 
of the covered species, and thus none will be affected. The biological 
opinion also analyzes other listed species within the planning area and 
concludes that the direct and indirect effect of the issuance of the 
ITP will not appreciably reduce the likelihood of survival and recovery 
of other listed species and will not cause adverse modification of any 
designated critical habitat within the permit area.
    5. The applicant agrees to implement other measures that the 
Service requires as being necessary or appropriate for the purposes of 
the HCP. We assisted Comal County in the development of their RHCP. We 
commented on draft documents, participated in numerous meetings and 
conference calls, and worked closely with Comal County during every 
step of plan and document preparation, so that conservation of the 
covered species would be assured and recovery would not be precluded by 
the covered activities. 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 proposed 
measures prove ineffective (adaptive management) or impacts exceed 
estimates (changed circumstances). 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 habitat for covered species, while 
allowing and providing a streamlined process for compliance with the 
Act for the covered activities. Considerations used in this decision 
include whether: (1) Mitigation will benefit the covered species, (2) 
mitigation lands will be managed for the species in perpetuity, (3) 
other conservation measures will protect and enhance habitat, (4) 
mitigation measures for the covered species will fully offset 
anticipated impacts to the species and provide recovery opportunities, 
and (5) the RHCP is consistent with the covered species' 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-223267-0 when requesting documents or submitting 
comments. You may obtain copies of the final EIS and final HCP by going 
to http://www.fws.gov/southwest/es/AustinTexas/. Alternatively, you may 
obtain CD-ROMs with electronic copies of these documents, as well as 
the draft ROD, by writing to Mr. Adam Zerrenner, Field Supervisor, U.S. 
Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, TX 
78758; calling (512) 490-0057; or 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. The application, final 
RHCIP, 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 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 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, (202) 208-5814.
     U.S. Fish and Wildlife Service, 500 Gold Avenue SW., Room 
6034, Albuquerque, NM 87102, (505) 248-6920.
     U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 
200, Austin, TX 78758, (512) 490-00574.

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 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 publicly 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 ESA (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: November 22, 2013.
Benjamin N. Tuggle,
Regional Director, Southwest Region, Albuquerque, New Mexico.
[FR Doc. 2014-00593 Filed 1-16-14; 8:45 am]
BILLING CODE 4310-55-P