[Federal Register Volume 86, Number 70 (Wednesday, April 14, 2021)]
[Notices]
[Pages 19634-19636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07475]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2020-N125; FXES11140200000-212-FF02ENEH00]


Application for an Incidental Take Permit; Renewable (Wind and 
Solar) Energy, Power Line, and Communication Tower Habitat Conservation 
Plan for the Lesser Prairie-Chicken; Colorado, Kansas, New Mexico, 
Oklahoma and Texas

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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SUMMARY: This notice advises the public that LPC Conservation LLC 
(applicant) has applied to the U.S. Fish and Wildlife Service (Service) 
for an incidental take permit (ITP) supported by the Renewable (Wind 
and Solar) Energy, Power Line, and Communication Tower Habitat 
Conservation Plan for the Lesser Prairie-chicken; Colorado, Kansas, New 
Mexico, Oklahoma and Texas (HCP). The applicant has applied to the 
Service for the ITP pursuant to the Endangered Species Act. The 
requested ITP, if approved, would authorize incidental take of the 
lesser prairie-chicken resulting from activities covered by the HCP 
(e.g., wind, solar, transmission lines, and communication towers) and 
incidental take resulting from conservation actions taken to avoid, 
minimize, and mitigate impacts of the incidental take of the LEPC that 
result from covered activities. If approved, the requested ITP would 
become effective should the LEPC become federally listed during the 
life of the ITP and HCP. With this notice we also announce the 
availability of a draft environmental assessment (EA) that has been 
prepared to evaluate the ITP application in accordance with the 
requirements of the National Environmental Policy Act. We are making 
the ITP application package, including the HCP and draft EA, available 
for public review and comment.

DATES: Submission of comments: We will accept comments received or 
postmarked on or before May 14, 2021.

ADDRESSES: Obtaining documents: You may obtain copies of the ITP 
application, HCP, draft EA, or other related documents on the internet 
at https://www.fws.gov/southwest/es/ArlingtonTexas.
    Submitting comments: You may submit written comments by email to 
[email protected]. Please note that your comment is in reference to the 
above-referenced HCP. For more information, see Public Availability of 
Comments.

FOR FURTHER INFORMATION CONTACT: Debra Bills, Field Supervisor, U.S. 
Fish and Wildlife Service, Arlington, Texas, Ecological Services 
Office; telephone 817-277-1100. Hearing or speech impaired individuals 
may call the Federal Relay Service at 800-877-8339 for TTY service.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), make available the Renewable (Wind and Solar) Energy, Power 
Line, and Communication Tower Habitat Conservation Plan for the Lesser 
Prairie-chicken; Colorado, Kansas, New Mexico, Oklahoma and Texas 
(HCP). The LPC Conservation LLC (applicant) has applied for an 
incidental take permit (ITP). If approved, the requested ITP would 
become effective and authorize incidental take of the lesser prairie-
chicken (Tympanuchus pallidicinctus; LEPC) should the LEPC become 
federally listed during the life of the ITP and HCP under the 
Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et 
seq.).
    We are considering issuing a section 10(a)(1)(B) ITP for the LEPC, 
a species that is not currently listed under the ESA, in response to 
the applicant's application and supporting HCP. While our 2016 revised 
HCP handbook (Handbook) provides guidance that an ITP and supporting 
HCP include at least one ESA-listed animal species, the issuance of 
this ITP could provide for LEPC conservation in several ways. First, 
the proposed HCP may meet the Service's conservation recommendation for 
the LEPC because it emphasizes avoidance and minimization, and focuses 
mitigation in areas that can serve as conservation strongholds for this 
species. Depending on enrollment, this mitigation strategy could help 
to preclude the need to list the LEPC or could help to recover the 
LEPC, if listing is warranted in the future. Second, the proposed HCP 
would provide taxpayer and industry savings in the use of one 
conservation planning strategy. In contrast, developing a CCAA prior to 
a future listing and developing an HCP, or multiple HCPs, after a 
potential future listing is inefficient for both the Federal agencies 
and industry participants. The proposed HCP would be more efficient 
because potential participants could enroll on a project-by-project 
basis either pre- or post a future listing. This allows for greater, 
more consistent, and more predictable conservation efforts to be 
undertaken. Third, with this proposed HCP, the Service would issue a 
permit that does not go into effect until a future listing, if it 
occurs. This is the same as our practice for permits associated with 
CCAAs and ITPs associated with multi-species HCPs that include unlisted 
species. Finally, the proposed HCP also supports States' management 
ability of the unlisted species similar to CCAAs in that the proposed 
ITP does not become effective until such time that the covered species 
may be listed. Prelisting participation is voluntary for participants 
and provides the affected States continued regulatory authority 
regarding wildlife species.
    We believe considering a HCP without a currently listed species, in 
this instance, is supported by the Conference Report to the 1982 
Amendments that created HCPs (Conference Report) which expressly 
considered both listed and unlisted species, H.R. Rep No. 97-835, at 30 
(1982). The Conference Report states that ``although the conservation 
plan is keyed to the permit provisions of the Act which only apply to 
listed species, the committee intends that conservation plans may 
address both listed and

[[Page 19635]]

unlisted species.'' Id. The Conference Report continues by stating that 
the inclusion of unlisted species supports the Congressional purpose 
that the species not be viewed in isolation but in terms of their 
relationship to the ecosystem as a whole. This broad view of 
conservation, including conservation planning and permitting for 
unlisted species, is ``consistent with the purposes of several other 
fish and wildlife statutes (e.g, Fish and Wildlife Act of 1956, Fish 
and Wildlife Coordination Act) which are intended to authorize the 
Secretary to cooperate with the States and private entities on matters 
regarding conservation of all fish and wildlife resources of this 
nation.'' Id. The Conference Report encourages the Secretary to develop 
``creative partnerships between the public and private sectors'' and 
notes that the Secretary ``may utilize this provision to approve 
conservation plans which provide long-term commitments regarding the 
conservation of listed as well as unlisted species.'' Id.
    Through the proposed minimization and mitigation measures, the HCP 
would provide long-term commitments regarding the conservation of LEPC 
that would fully offset impacts to the species associated with habitat 
loss and fragmentation resulting from implementation of the covered 
activities by participants in the HCP. The HCP would provide voluntary 
pre-listing conservation that may be used to evaluate the species' 
status in a future listing decision, and potential participants would 
have the option to enroll in the HCP prior to or after a potential 
future listing decision. As such, processing the ITP application and 
HCP under 10(a)(1)(B) could provide for long-term conservation for the 
LEPC and more flexibility and long-term regulatory certainty for 
participants, as described above.
    Based on the information above, we have determined that processing 
this ITP application and HCP is consistent with the Conference Report 
and current regulations, and, therefore, we may process this ITP 
application and HCP under section 10(a)(1)(B) of the ESA and its 
implementing regulations (50 CFR 17.22(b) and 17.32(b)).
    In accordance with the requirements of the National Environmental 
Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.), we advise the public 
that:
    1. We have prepared a draft environmental assessment (EA) to 
evaluate the ITP application. We are accepting comments on the ITP 
application and draft EA.
    2. The applicant has developed an HCP which describes the measures 
the applicant has volunteered to take to meet the issuance criteria for 
a 10(a)(1)(B) ITP associated with an HCP. The issuance criteria for 
HCPs are found at 50 CFR 17.22(b)(2) and 50 CFR 17.32(b)(2).
    3. The HCP would be implemented by those parties who voluntarily 
enroll, providing conservation upon enrollment, but the subject ITP 
would not be effective until such time as the cover species may be 
listed in the future. The ITP would be effective only for those 
participants fully implementing the conservation plan.
    4. As described in the HCP, the potential incidental take of LEPC 
could result from otherwise lawful, voluntary activities covered by the 
HCP.
    5. We have included the alternative of issuing an enhancement of 
survival permit (ESP) under section 10(a)(1)(A) of the ESA, the 
Candidate Conservation Agreement with Assurances Policy, and 
implementing regulations (50 CFR 17.22(d) and 17.32(d)), and we will 
accept comments related to this alternative.

Background

    Section 9 of the ESA and our implementing regulations at 50 CFR 
part 17 prohibit the ``take'' of fish or wildlife species listed as 
endangered or threatened. Take is defined under the ESA as to ``harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect 
listed animal species, or to attempt to engage in such conduct'' (16 
U.S.C. 1538(19)). However, under section 10(a) of the ESA, we may issue 
permits to authorize incidental take of listed 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.
    Regulations governing such take of endangered and threatened 
species are found at 50 CFR 17.21-22 and 50 CFR 17.31-32, respectively.

Proposed Action

    The proposed action involves the issuance of a 10(a)(1)(B) 
incidental take permit (ITP) to LPC Conservation LLC (applicant) and 
approval of the proposed Renewable (Wind and Solar) Energy, Power Line, 
and Communication Tower Habitat Conservation Plan for the Lesser 
Prairie-chicken; Colorado, Kansas, New Mexico, Oklahoma and Texas 
(HCP). The ITP would cover incidental ``take'' of the LEPC associated 
with wind, solar, power line, and communication tower buildout, 
including ancillary (e.g., access road, lay down yard, power line 
interconnection) ground-disturbing activities associated with these 
project types within the HCP permit area that could affect potentially 
suitable LEPC habitat (the ``covered activities''). In addition, the 
covered activities include other ground disturbing activities which 
could occur during some types of repairs required during the operations 
and maintenance phase, project repowering, or project decommissioning 
within the permit area.
    The requested term of the ITP is 30 years, and the ITP would 
authorize incidental take of LEPC associated with impacts to up to 
500,000 acres of suitable LEPC habitat within the plan area 
(approximately 1.7 percent of the 30,178,085 total acres of potentially 
suitable LEPC habitat within the plan area) resulting from 
implementation of the covered activities by participants in the HCP.
    To meet the requirements of a section 10(a)(1)(B) ITP, the 
applicant has developed, and proposes to implement, the HCP, which 
describes the conservation measures the applicant has voluntarily 
agreed to undertake. These measures will be implemented prior to or 
concurrent with proposed impacts. These measures include LEPC habitat 
conservation through enhancement and restoration. On average, for every 
acre of LEPC habitat impacted, 2 acres of perpetual LEPC habitat 
conservation would be required. Of those 2 acres, 1 acre would consist 
of restoration and the other acre would consist of enhancement. 
Restoration actions include removal of woody vegetation encroachment, 
removal infrastructure, and conversion of cropland to grasslands. 
Enhancement efforts primarily include actions to maintain or enhance 
the quality of existing LEPC habitat, such as prescribed burning, 
prescribed grazing, and chemical and mechanical manipulation of the 
vegetative community. Implementation of the proposed LEPC habitat 
conservation measures are projected to result in no net loss of LEPC 
habitat. The ITP would authorize incidental take that may result from 
the implementation of the proposed conservation measures, including 
activities occurring on mitigation parcels that, while providing a 
long-term benefit to LEPC, may have temporary impacts to the species.
    The HCP, including the proposed conservation measures, was 
developed in coordination with the Service. Implementation of the HCP 
requirements, including the conservation measures, would be required 
for all participants in the HCP regardless of the listing status of the 
LEPC. The proposed conservation measures, once implemented, would

[[Page 19636]]

fully offset impacts to the LEPC associated with habitat loss and 
fragmentation resulting from implementation of the covered activities, 
and would provide a long-term conservation benefit to LEPC.

Alternatives

    We are considering two alternatives to the proposed action as part 
of this process: Issuance of an Enhancement of Survival Permit for a 
Candidate Conservation Agreement With Assurances, and a No Action 
Alternative.

1. Issuance of an Enhancement of Survival Permit for a Candidate 
Conservation Agreement With Assurances

    Under this alternative, instead of approving the HCP and issuing an 
ITP, the Service would issue an enhancement of survival permit (ESP) 
pursuant to section 10(a)(1)(A) of the ESA, supported by a candidate 
conservation agreement with assurances (CCAA), to the applicant for 
incidental take associated with the covered activities in the CCAA. The 
proposed covered activities in the CCAA would be the same as those 
proposed in the HCP. The permit term for the ESP would be 30 years. 
Under this alternative, it is assumed the applicant (in the role of 
CCAA administrator) would require enrolled projects to implement all 
the avoidance, minimization, mitigation, monitoring, adaptive 
management, and reporting processes described in the HCP as part of the 
CCAA. It is anticipated that a similar level of wind, solar, power 
line, and communication tower development within the permit area would 
occur under an HCP or a CCAA for each project. However, the enrollment 
of projects under the CCAA would end upon the future date of a possible 
listing of the covered species; whereas, the HCP enrollment would 
continue for the duration of the permit. We anticipate that this 
alternative would result in the same level of potential impacts to LEPC 
and the same level of LEPC conservation as what is proposed in the HCP 
for those enrolled prior to listing, but projects after a potential 
listing would need to develop their own HCPs or find an alternative 
coverage for incidental take. This action would be consistent with 
existing Service guidance for conservation actions of unlisted species.

2. No Action Alternative

    Under this alternative, the Service would not issue an ITP or an 
ESP, and therefore this programmatic permitting structure would not be 
available for willing participants. While the LEPC remains unlisted, 
potentially participating entities (i.e., wind, solar, power line, and 
communication tower companies) would have little economic or legal 
incentive to voluntarily initiate the conservation or management 
activities that are proposed in the HCP to benefit the LEPC. Therefore, 
unless potentially participating entities voluntarily participate in 
another programmatic permitting option, should one be available, or 
voluntarily develop their own stand along permitting option, 
conservation measures above and beyond those directed by existing 
Federal, State, and local laws, policies, or regulations likely would 
not be implemented, and the LEPC would not gain additional protections 
and conservation benefits over what currently exists. On private lands, 
where the State or Federal government has no authority to protect or 
direct the management of LEPC habitat, LEPC conservation programs would 
be implemented entirely at the discretion of the landowners and private 
developers.

Next Steps

    We will evaluate the permit application, HCP, associated documents, 
and comments we receive to determine whether the ITP application meets 
the requirements of ESA, NEPA, and implementing regulations, or whether 
the issuance of an ESP should be considered. If we determine that all 
requirements are met, we will approve the HCP and issue the ITP under 
section 10(a)(1)(B) of the ESA (16 U.S.C. 1531 et seq.) to the 
applicant in accordance with the terms of the HCP and specific terms 
and conditions of the authorizing ITP. Alternatively, we could approve 
this plan as a CCAA and issue an ESP under section 10(a)(1)(A) of the 
ESA (16 U.S.C. 1531 et seq.) and applicable regulations. We will 
consider comments on both the alternative and the denial of issuing a 
permit in our final decision. We will not make our final decision until 
after the 30-day comment period ends, and we have fully considered all 
comments received during the public comment period.

Public Availability of Comments

    All comments we receive become part of the public record associated 
with this action. Requests for copies of comments will be handled in 
accordance with the Freedom of Information Act, NEPA, and Service and 
Department of the Interior policies and procedures. 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 ask us 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 under the authority of section 10(c) of the 
ESA and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA 
(42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR 
1506.6).

Amy L. Lueders,
Regional Director, Southwest Region, U.S. Fish and Wildlife Service.
[FR Doc. 2021-07475 Filed 4-13-21; 8:45 am]
BILLING CODE 4333-15-P