[Federal Register Volume 85, Number 216 (Friday, November 6, 2020)]
[Notices]
[Pages 71086-71088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24636]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[Docket No. FWS-R1-ES-2019-0091; FXES11140100000-212-FF01E00000]


Final Environmental Impact Statement and Final Deschutes Basin 
Habitat Conservation Plan; Klamath, Deschutes, Jefferson, Crook, Wasco, 
and Sherman Counties, Oregon

AGENCY: Fish and Wildlife Service, Interior, National Marine Fisheries 
Service, National Oceanic and Atmospheric Administration, Commerce.

ACTION: Notice of availability.

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SUMMARY: In accordance with the Endangered Species Act (ESA) and the 
National Environmental Policy Act (NEPA), we, the U.S. Fish and 
Wildlife Service and National Marine Fisheries Service (together, the 
Services), announce the availability of a final environmental impact 
statement (FEIS) and habitat conservation plan (HCP) addressing covered 
activities by the Deschutes Basin Board of Control (DBBC)'s eight-
member irrigation districts, and the City of Prineville (applicants). 
The applicants are seeking incidental take permits (ITPs) covering the 
incidental take of four covered species over a 30-year period. The HCP 
describes the steps the applicants will take to minimize, mitigate, and 
monitor the impacts of incidental take of the covered species. The FEIS 
has been prepared, pursuant to NEPA, in response to these applications.

DATES: The Services' ITP decisions will occur no sooner than 30 days 
after publication of the U.S. Environmental Protection Agency's notice 
of the FEIS in the Federal Register, and will be documented in each 
agency's record of decision.

ADDRESSES: You may obtain copies of the documents by any of the 
following methods:
     Internet: http://www.regulations.gov under Docket No. FWS-
R1-ES-2019-0091, or at https://www.fws.gov/Oregonfwo/articles.cfm?id=149489716.
     Upon Request: You may request alternative formats of the 
documents directly from the Services (see FOR FURTHER INFORMATION 
CONTACT).

FOR FURTHER INFORMATION CONTACT: Bridget Moran, by telephone at 541-
383-7146, or by email at [email protected]; or Scott Carlon, by 
telephone at 971-322-7436, or by email at [email protected]. 
Hearing or speech impaired individuals may call the Federal Relay 
Service at 800-877-8339 for TTY assistance.

SUPPLEMENTARY INFORMATION: The U.S. Fish and Wildlife Service (FWS) and 
the National Marine Fisheries Service (NMFS) (jointly, the Services) 
announce the availability of a final environmental impact statement 
(FEIS) and final habitat conservation plan (HCP) addressing covered 
activities by the Deschutes Basin Board of Control

[[Page 71087]]

(DBBC) member districts (Arnold, Central Oregon, Lone Pine, North Unit, 
Ochoco, Swalley, Three Sisters, and Tumalo Irrigation Districts) and 
the City of Prineville (applicants) in Klamath, Deschutes, Jefferson, 
Crook, Wasco, and Sherman Counties, Oregon. The applicants are 
requesting an incidental take permit (ITP) covering the take of the 
federally threatened Oregon spotted frog (Rana pretiosa) and the 
threatened bull trout (Salvelinus confluentus) from FWS; and a separate 
ITP covering take of the federally threatened Middle Columbia River 
steelhead trout (Oncorhynchus mykiss) and the non-listed sockeye salmon 
(O. nerka) from NMFS. Hereafter, these four species are collectively 
referred to as the ``covered species.''
    The ITPs, if issued, would authorize take of the covered species 
that may occur over the 30-year permit term incidental to the storage, 
release, diversion, and return of irrigation water by the DBBC member 
districts, and groundwater withdrawals, effluent discharges, and 
surface water diversions by the City of Prineville (collectively, the 
``covered activities'').
    The HCP describes the impacts that will likely result from the take 
of the covered species and describes the steps the applicants will take 
to minimize and mitigate such impacts. The HCP also describes the 
covered species' life history and ecology, as well as the biological 
goals and objectives of the HCP, adaptive management, monitoring, and 
funding assurances.
    The FEIS was prepared by FWS in response to the ITP applications 
from the applicants, with input from NMFS as a cooperating agency. The 
Services also jointly considered comments received on the draft HCP and 
draft environmental impact statement (DEIS), in accordance with the 
requirements of the National Environmental Policy Act (NEPA; 42 U.S.C. 
4321 et seq.).

Background

    All eight water districts are quasi-municipal corporations formed 
and operated according to Oregon State law to distribute water to 
irrigators (patrons) within designated geographic boundaries and in 
accordance with the individual water rights held by those patrons. The 
City of Prineville operates City-owned infrastructure and provides 
essential services--including public safety, municipal water supply, 
and sewage treatment--for more than 9,000 residents. The applicants 
have determined that continued operation of irrigation and essential 
services requires ITPs to address unavoidable take of covered species, 
which is ongoing.
    The applicants have proposed a conservation program to avoid, 
minimize, and mitigate the impacts of taking of the covered species. 
The HCP addresses the adverse effects of the covered activities on the 
covered species by reducing or eliminating those effects to the maximum 
extent practicable, and by mitigating effects that cannot be eliminated 
altogether. In general, adverse effects on listed species can result 
from direct harm or injury of individuals of the species, and through 
changes in habitat that interfere with the essential life activities of 
the species. Both types of effects are addressed in the HCP 
conservation measures. The covered activities affect the covered 
species primarily through changes in the hydrology (flow) of occupied 
waters associated with the storage, release, diversion, and return of 
irrigation water.
    In the course of storing, releasing, diverting, and returning 
irrigation water, the applicants alter the hydrology of the Deschutes 
River and a number of its tributaries. In a similar fashion, the 
pumping of groundwater for municipal water supply by the City of 
Prineville affects the hydrology in one of those tributaries, the 
Crooked River. In most cases, the hydrologic changes resulting from 
activities covered by the HCP have adverse impacts on aquatic habitats 
for the covered species. When flows are reduced, the total area of 
usable habitat for aquatic species generally decreases and water 
temperatures typically increase to the extent that habitat quality is 
negatively impacted. The HCP's conservation measures will modify 
irrigation activities that reduce in-stream flow (storage and diversion 
of water) to address the adverse effects. As a result, with 
implementation of the HCP, flows in the affected reaches will be higher 
than they were historically (over the last 50+ years) in the winter, 
and water temperatures (particularly peak summer temperatures) will be 
lower.
    The actions considered in the FEIS are approval of the HCP and 
issuance of ITPs (one from each of the Services) with a term of 30 
years to the applicants, if permit issuance criteria are met. The 
Services will each make an independent decision regarding coverage for 
incidental take of the species under its respective jurisdiction.

Endangered Species Act

    Section 9 of the ESA and its implementing regulations prohibit 
``take'' of fish and wildlife species listed as endangered (16 U.S.C. 
1538(a)(1)). Section 4 of the ESA allows FWS and NMFS to issue 
regulations which prohibit the take of any fish and wildlife species 
listed as threatened, as well (16 U.S.C. 1533(d)). The take prohibition 
has been extended, in whole or in part, to the three covered species 
that are listed as threatened. However, steelhead that occur above 
Round Butte Dam on the Deschutes River are designated as a nonessential 
experimental population under section 10(j) of the ESA. Incidental take 
is allowed for legally authorized activities that may affect this 
species. This designation will expire on January 15, 2025, at which 
time take prohibitions shall be in place. Under section 3 of the ESA, 
the term ``take'' means to ``harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or attempt to engage in any such 
conduct'' (16 U.S.C. 1538). Under section 10(a) of the ESA, the 
Services may issue permits to authorize incidental take of listed fish 
and wildlife 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. Section 10(a)(1)(B) of the ESA contains 
provisions for issuing ITPs to non-Federal entities for the take of 
endangered and threatened species, provided the following criteria are 
met:
    1. The taking will be incidental;
    2. The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such taking;
    3. The applicant will ensure that adequate funding for the HCP will 
be provided;
    4. The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild; and
    5. The applicant will carry out any other measures that the 
Services may require as being necessary or appropriate for purposes of 
the HCP.

National Environmental Policy Act

    In compliance with NEPA (42 U.S.C. 4321 et seq.), FWS prepared a 
FEIS analyzing the proposed action (identified as the Services' 
preferred alternative), a no-action alternative, and two additional 
alternatives to the proposed action. The environmental consequences of 
each alternative were analyzed to determine if significant impacts to 
the human environment would occur.
    Alternative 1--No-action Alternative: No ITPs would be issued, and 
the applicants' HCP would not be implemented. Under Alternative 1, 
ongoing applicant activities would remain subject to the take 
prohibition for listed species under section 9 of the ESA. This 
alternative assumes continuation of actions covered in an ESA section 7 
biological opinion issued

[[Page 71088]]

to the Bureau of Reclamation addressing the effects of water management 
activities in the Upper Deschutes River Basin to the Oregon spotted 
frog, and continuation of actions covered in other ESA section 7 
consultation documents addressing the effects of Deschutes River Basin 
projects to the Middle Columbia River steelhead trout and the bull 
trout.
    Alternative 2--Proposed Action, Deschutes Basin HCP: Under this 
alternative, identified as the preferred alternative in the FEIS, the 
Services would issue 30-year ITPs to the applicants for incidental take 
of the four covered species caused by covered activities in the plan 
area, and the applicants would implement the HCP. Over the 30-year 
period of HCP implementation, in-stream flows would be modified to 
mimic more natural flow patterns to support the various life stages of 
the covered species.
    Alternative 3--Enhanced Variable Streamflows: Under this 
alternative, the Services would issue ITPs to the applicants for the 
same plan area, covered lands and waters, covered species, covered 
activities, and permit term as described for the proposed action, but 
with modifications to the HCP conservation strategy, including 
increased fall and winter flows in the Deschutes River below Wickiup 
Dam, in-stream protection of uncontracted water releases on the Crooked 
River for fish and wildlife, and the inclusion of a habitat improvement 
fund for projects in the Upper Deschutes River Basin.
    Alternative 4--Accelerated Schedule for Enhanced Variable 
Streamflows: Under this alternative, the Services would issue ITPs to 
the applicants for the same plan area, covered lands and waters, 
covered species, and covered activities as described for the proposed 
action, but with a 20-year permit term and modifications to the HCP 
conservation strategy for an accelerated schedule for increases in fall 
and winter flows in the Deschutes River below Wickiup Dam, in-stream 
protection of additional uncontracted water releases on the Crooked 
River for fish and wildlife, and the habitat improvement fund for 
projects in the Upper Deschutes River Basin.
    As the DEIS was developed prior to the Council on Environmental 
Quality's issuance of updated regulations implementing NEPA which went 
into effect on September 14, 2020 (40 CFR 1506.13), the FEIS was 
completed under the previous regulations in the interest of time and 
efficiency.

EPA's Role in the EIS Process

    The Environmental Protection Agency (EPA) is charged with reviewing 
all Federal agency EISs and commenting on the adequacy and 
acceptability of the environmental impacts of proposed actions 
addressed in these EISs. Therefore, EPA is publishing a notice in the 
Federal Register announcing this EIS, as required under section 309 of 
the Clean Air Act. EPA serves as the repository (EIS database) for EISs 
prepared by Federal agencies. You may search for EPA comments on EISs, 
along with EISs themselves, at https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

Public Involvement

    The notice of intent (NOI) to prepare a DEIS was published in the 
Federal Register on July 24, 2017 (82 FR 34326). The NOI also announced 
a public scoping period (July 24, 2017, through September 22, 2017), 
during which interested parties were invited to provide written 
comments related to the proposal. Four public scoping meetings were 
held: Two in Madras, Oregon, on August 14, 2017; and two in Bend, 
Oregon, on August 15, 2017. The meetings were convened in accordance 
with NEPA procedures (40 CFR 1501.7). Using public scoping comments, 
FWS prepared a DEIS to analyze the effects of the above alternatives on 
the human environment, with input from NMFS as a cooperating agency. A 
notice of availability (NOA) of the DEIS and draft HCP was published by 
FWS in the Federal Register on October 4, 2019 (84 FR 53164), opening a 
45-day public comment period. Also on that day, NMFS published a NOA 
for the draft HCP in the Federal Register (84 FR 53114), also 
announcing a 45-public comment period. The Services also published a 
15-day extension of the comment period on October 29, 2019 (84 FR 
58169; 85 FR 61026), bringing the total comment period to 60 days for 
both the DEIS and draft HCP. Two public open-house meetings were held, 
on October 15, 2019, in Bend, Oregon, and on October 16, 2019, in 
Prineville, Oregon, to solicit additional input from the public on the 
DEIS and draft HCP. A total of 1,611 comment letters and electronic 
submissions were received from the public. The official comment period 
ended on December 4, 2019.

Next Steps

    The Services will evaluate the permit applications, associated 
documents, and public comments in reaching a final decision on whether 
the applications meet the requirements of section 10(a) of the ESA (16 
U.S.C. 1539 et seq.). The Services will also each evaluate whether the 
proposed permit action would comply with section 7 of the ESA. If the 
requirements are met, the Services will issue the ITPs to the 
applicants. Each agency (FWS and NMFS) will issue a record of decision, 
and approve or deny the request for an ITP no sooner than 30 days after 
publication of EPA's NOA of the FEIS in the Federal Register.

Public Review

    We are not requesting public comments on the FEIS and HCP, but any 
written comments we receive will become part of the public record 
associated with this action. Before including your address, phone 
number, email address, or other personal identifying information in a 
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. 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 in accordance with the requirements of 
section 10 of the ESA (16 U.S.C. 1531 et seq.) and NEPA and its 
implementing regulations (40 CFR 1503.1 and 1506.6).

Robyn Thorson,
Regional Director, U.S. Fish and Wildlife Service.
Angela Somma,
Chief, Endangered Species Conservation, Office of Protected Resources, 
National Marine Fisheries Service.
[FR Doc. 2020-24636 Filed 11-5-20; 8:45 am]
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