[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Notices]
[Pages 8031-8033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02939]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2021-N195; FXES11140200000-223-FF02ENEH00]


Application for an Incidental Take Permit; Oil and Gas 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 Oil and Gas 
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 (Tympanuchus pallidicinctus; LEPC) resulting 
from activities covered by the HCP (e.g., all activities associated 
with oil and gas upstream and midstream buildout, including ancillary 
(e.g., access road) ground disturbing activities associated with these 
project types) and would authorize incidental take resulting from 
conservation actions taken to avoid, minimize, and mitigate impacts of 
incidental take to 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 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 March 14, 2022.

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 Oil and Gas 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 the LEPC is listed in the future. Second, the proposed HCP 
would provide taxpayer and industry savings in the use of an 
overarching conservation planning strategy. In contrast, the processes 
of developing a candidate conservation agreement with assurances (CCAA) 
prior to a future listing and then developing an HCP or multiple HCPs 
after a potential future listing would be inefficient for both the 
Federal agency and industry participants. The proposed HCP would be 
more efficient because potential participants could enroll on a 
project-by-project basis either before or after a potential future 
listing. This

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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 one occurs. This is the same as our practice for permits 
associated with CCAAs, and ITPs associated with multi-species HCPs that 
include unlisted species. Although the permit would not go into effect 
until a future listing, if it occurs, participants would be required to 
implement all conservation activities identified within the HCP at the 
time they enroll, providing for prelisting conservation of the covered 
species. Finally, the proposed HCP would support States' ability to 
manage the unlisted species, similar to how a CCAA would support this, 
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 with 
continued regulatory authority regarding wildlife species.
    We believe that considering an HCP without a currently listed 
species is supported by the House Conference Report (Conference Report) 
to the 1982 ESA amendments that created HCPs, which expressly 
considered both listed and unlisted species (H.R. Report No. 97-835, at 
30 (1982)). The Conference Report states that ``although the 
conservation plan is keyed to the permit provisions of the Act [ESA] 
which only apply to listed species, the committee intends that 
conservation plans may address both listed and unlisted species.'' 
Ibid. The Conference Report continues by stating that the inclusion of 
unlisted species supports the Congressional purpose that 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.'' Ibid. 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 that provide long-term 
commitments regarding the conservation of listed as well as unlisted 
species.'' Ibid.
    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 
opportunities for 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 section 10(a)(1)(B) of the ESA 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 50 CFR 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 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 covered 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 CCAA 
Policy, and implementing regulations (50 CFR 17.22(d) and 50 CFR 
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) ITP to 
the applicant and approval of the proposed HCP. The ITP would cover 
incidental ``take'' of the LEPC associated with oil and gas upstream 
and midstream buildout, including ancillary (e.g., access road) 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 grassland improvement and management activities that could 
occur in potential LEPC habitat on mitigation parcels to manage the 
parcel for LEPC. Beyond initial construction of a project, other 
ground-disturbing activities 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 on 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

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acre would consist of restoration and the other acre would consist of 
enhancement. Restoration actions include removal of woody vegetation 
encroachment, removal of 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 fully 
offset impacts to the LEPC associated with habitat loss and 
fragmentation resulting from implementation of the covered activities.

Alternatives

    We are considering two alternatives to the proposed action as part 
of this process: Issue an ESP for a CCAA, and a No Action Alternative.

1. Issue 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 ESP pursuant to section 10(a)(1)(A) of 
the ESA, supported by a 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 oil and gas 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 on 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; 
however, 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., oil and gas 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 standalone 
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 exist. 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 and applicable regulations if we determine that all requirements of 
the ESA, NEPA, and implementing regulations are met. 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 50 CFR 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. 2022-02939 Filed 2-10-22; 8:45 am]
BILLING CODE 4333-15-P