[Federal Register Volume 85, Number 225 (Friday, November 20, 2020)]
[Notices]
[Pages 74372-74374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25697]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R1-ES-2020-N118; FXES11140100000-201-FF01E00000]


Proposed Safe Harbor Agreement for Streaked Horned Lark Habitat 
Restoration, Linn County, Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an enhancement of survival permit application from Scott Erion 
pursuant to the Endangered Species Act of 1973 for streaked horned lark 
(lark) which is federally listed as threatened. The permit application 
includes a draft safe harbor agreement (SHA) developed for the 
conservation of the lark. The permit if issued would authorize the 
incidental take of the lark associated with habitat management actions 
intended to benefit the lark. We have prepared a draft environment 
action statement (EAS) for our preliminary determination that the 
proposed SHA and permit issuance may be eligible for categorical 
exclusion under the National Environmental Policy Act. We are making 
the permit application package, including the proposed SHA and draft 
EAS, available for public review and comment.

DATES: To ensure consideration, written comments must be received from 
interested parties no later than December 21, 2020.

ADDRESSES: To view documents, request further information, or submit 
written comments, please use one of the following methods, and note 
that your information request or comments are in reference to the 
``Erion Property SHA.''
     Internet: Documents may be viewed on the internet at 
http://www.fws.gov/oregonfwo/.
     Email: [email protected].
     U.S. Mail: State Supervisor, U.S. Fish and Wildlife 
Service; 2600 SE 98th Avenue, Suite 100; Portland, OR 97266.

FOR FURTHER INFORMATION CONTACT: Elise Brown, U.S. Fish and Wildlife 
Service (see ADDRESSES); telephone: 503-231-6179; facsimile: 503-231-
6195. If you use a telecommunications device for the deaf, please call 
the Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an enhancement of survival permit application 
from Scott Erion pursuant to section 10(a)(1)(A) of

[[Page 74373]]

the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et 
seq.). The requested permit would authorize the incidental take of the 
streaked horned lark (Eremophila alpestris strigata) resulting from the 
habitat management activities that are expected to provide a net 
conservation benefit for the species. The permit application includes a 
proposed safe harbor agreement (SHA) that describes the existing 
baseline conditions, and the activities that are intended to produce a 
net conservation benefit for the lark.

Background

    Under a SHA, participating landowners voluntarily undertake 
management activities on their property to enhance, restore, or 
maintain habitat benefiting species listed under the ESA. SHAs, and the 
subsequent enhancement of survival permits that are issued pursuant to 
section 10(a)(1)(A) of the ESA, encourage private and other non-federal 
property owners to implement conservation efforts for listed species by 
providing assurances that they will not be subjected to increased 
property use restrictions as a result of their efforts to attract 
listed species to their property, or to increase the numbers or 
distribution of listed species already on their property. Application 
requirements and issuance criteria for enhancement of survival permits 
through SHAs for threatened species are found in 50 CFR 17.32(c). As 
provided for in the Service's final Safe Harbor Policy (64 FR 32717; 
June 17, 1999), SHAs provide assurances that allow the property owner 
to alter or modify their enrolled property, even if such alteration or 
modification results in the incidental take of listed species to such 
an extent that it returned the species back to the originally agreed 
upon baseline conditions.
    Section 9 of the ESA prohibits the take of fish and wildlife 
species listed as endangered or threatened under section 4 of the ESA. 
Under the ESA, the term ``take'' means to harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect, or to attempt to engage 
in any such conduct (16 U.S.C. 1532(19)). The term ``harm,'' as defined 
in our regulations, includes significant habitat modification or 
degradation that results in death or injury to listed species by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, or sheltering (50 CFR 17.3). The term ``harass'' is 
defined in our regulations as an intentional or negligent act or 
omission which creates the likelihood of injury to wildlife by annoying 
it to such an extent as to significantly disrupt normal behavioral 
patterns, which include, but are not limited to, breeding, feeding, or 
sheltering (50 CFR 17.3). Under specified circumstances, however, we 
may issue permits that authorize take of federally listed species, 
provided the take is incidental to, but not the purpose of, an 
otherwise lawful activity.
    We listed the streaked horned lark as a threatened species, 
designated critical habitat, and issued a special rule on October 3, 
2013 (78 FR 61452). The special rule, issued under section 4(d) the 
ESA, exempts some land management activities including certain common 
practices by agricultural operations, and noxious weed control 
activities, on non-federal land from take prohibitions of section 9 of 
the ESA and our regulations in order to provide for the conservation of 
the lark. The listing and 4(d) rule were challenged in court, see 
Center for Biological Diversity v. Zinke, No. 3:18-cv-00359 (D. Or.), 
resulting in a remand of the rule to the Service, although the rule was 
not vacated during the remand. The Service will submit an updated 
proposed listing determination for the lark, including reconsideration 
of the 4(d) rule if appropriate, to the Federal Register by March 21, 
2021.
    Historically, the lark was likely distributed throughout grassland 
habitats found in the Willamette Valley, Oregon, as well as ranging 
from southern British Columbia, Canada, the Puget lowlands of 
Washington, and south to valleys in southwestern Oregon. Currently, the 
lark's range has been constricted due to various factors, but in Oregon 
the species still commonly breeds in Benton, Lane, Linn, Marion, Polk, 
Clackamas, Washington, and Yamhill Counties--with large populations 
occurring on lands that are part of the Service's Willamette Valley 
National Wildlife Refuge Complex. Streaked horned lark preferred 
nesting habitat is bare ground, with minimal, short-statured vegetation 
in the immediate vicinity, but anthropogenic disturbances, such as 
field mowing or disposal of material dredged from water bodies, has 
reduced the availability of such nesting habitat within the lark's 
range. At the same time, lark nesting habitat can be created from 
``disturbance'' events that create bare ground--such as from prescribed 
fire, mowing during the spring and summer months, and field disking.

Proposed Action

    Scott Erion and the Service jointly developed the proposed SHA for 
the conservation of the streaked horned lark. The physical area 
addressed by this proposed SHA and associated permit encompasses 
approximately 315 acres in Linn County, Oregon (``enrolled lands''), 
which are located within the range of larks. The Service determined 
that the baseline condition for the SHA and associated permit, is zero 
larks. This baseline was determined through surveys conducted before 
management activities for the benefit of the lark commenced. The 
enrolled lands are being retired from agricultural usage and being 
converted to native prairie/wetland habitats common to the Willamette 
Valley.
    Management actions occurring under this proposed SHA are intended 
to create and maintain habitat conditions supportive of streaked horned 
lark, and thus increase the distribution and abundance of larks through 
the development, maintenance, and enhancement of habitat. The 
management activities include mowing, disking, prescribed fire, 
herbicide application to control weeds, and reseeding with native 
plants. These management activities are similar to agricultural 
activities that can qualify for exemption from ``take'' under the 
current 4(d) rule for the lark. The applicant seeks the particular 
assurance of an SHA even if incidental take associated with the 
conservation management activities on the enrolled lands might 
otherwise be exempted under the 4(d) rule.
    Specific treatments and follow-up management actions will be 
implemented under an adaptive framework. In addition, the SHA provides 
for the monitoring of streaked horned lark and supporting research 
opportunities, as needed. The Service will provide technical assistance 
for implementation of the proposed SHA. The Service proposes to enter 
into the SHA and to issue a permit to Mr. Erion authorizing incidental 
take of the covered species caused by covered activities as a result of 
lawful activities within the enrolled lands, if permit issuance 
criteria are met. Both the SHA and the permit would have a term of 10 
years.
    The draft EAS now available for public review (see ADDRESSES) 
indicates that the proposed SHA and permit decision may be eligible for 
a categorical exclusion under the National Environmental Policy Act 
(NEPA; 42 U.S.C. 4321 et seq.). We are making the permit application 
package, including the SHA, and draft EAS, available for public review 
and comment.

Public Comments

    You may submit your comments and materials by one of the methods 
listed in the ADDRESSES section. We request

[[Page 74374]]

data, comments, new information, or suggestions from the public, other 
concerned governmental agencies, the scientific community, Tribes, 
industry, or any other interested party on our proposed Federal action, 
including adequacy of the SHA pursuant to the requirements for permits 
at 50 CFR parts 13 and 17 and adequacy of the EAS pursuant to NEPA.

Public Availability of Comments

    All comments and materials 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 comments, you should be aware that your 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. 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(c) of the ESA (16 U.S.C. 1531 et seq.), and NEPA (42 U.S.C. 
4321 et seq.) and their implementing regulations (50 CFR 17.22, and 40 
CFR 1506.6, respectively).

Robyn Thorson,
Regional Director, U.S. Fish and Wildlife Service.
[FR Doc. 2020-25697 Filed 11-19-20; 8:45 am]
BILLING CODE 4333-15-P