[Federal Register Volume 87, Number 217 (Thursday, November 10, 2022)]
[Notices]
[Pages 67946-67947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24607]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R3-ES-2022-0145; FXES11140300000-223]


Receipt of an Incidental Take Permit Application for Proposed 
Habitat Conservation Plan, Consumers Energy Natural Gas Pipeline 
Replacement; Five Counties, Michigan; Categorical Exclusion

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comment and information.

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

SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Consumers Energy for an incidental take permit under 
the Endangered Species Act. If approved, the permit would authorize the 
incidental take of a federally threatened species, the eastern 
massasauga rattlesnake (Sistrurus catenatus; EMR). The applicant has 
prepared a habitat conservation plan in support of their application. 
We have made a preliminary determination that the HCP and permit 
application are eligible for categorical exclusion under the National 
Environmental Policy Act. We invite comments from the public and 
Federal, Tribal, State, and local governments.

DATES: We will accept comments received or postmarked on or before 
December 12, 2022.

ADDRESSES: 
    Document availability: Electronic copies of the documents this 
notice announces, along with public comments received, will be 
available online in Docket No. FWS-R3-ES-2022-0145 at https://www.regulations.gov.
    Comment submission: Please specify whether your comment addresses 
the proposed habitat conservation plan, draft environmental action 
statement, any combination of the aforementioned documents, or other 
documents. You may submit written comments by one of the following 
methods:
     Online: https://www.regulations.gov. Search for and submit 
comments on Docket No. FWS-R3-ES-2022-0145.
     By hard copy: Submit comments by U.S. mail to Public 
Comments Processing, Attn: Docket No. FWS-R3-ES-2022-0145; U.S. Fish 
and Wildlife Service; 5275 Leesburg Pike, MS: PRB/3W; Falls Church, VA 
22041-3803.

FOR FURTHER INFORMATION CONTACT: Carrie Tansy, Deputy Field Supervisor, 
Michigan Ecological Services Field Office, by email at 
[email protected], or telephone at 517-351-8375; or Andrew Horton, 
Regional HCP Coordinator, Midwest Region, by email at 
[email protected] or telephone at 612-713-5337. Individuals in the 
United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an application from Consumers Energy for an 
incidental take permit under the Endangered Species Act (ESA; 16 U.S.C. 
1531 et seq.). If approved, the permit would be for a 15-year period 
and would authorize the incidental take of a federally threatened 
species, the eastern massasauga rattlesnake (Sistrurus catenatus; EMR). 
The applicant has prepared a habitat conservation plan (HCP) that 
describes the actions and measures proposed that would avoid, minimize, 
and mitigate incidental take of EMR along an approximate 56-mile (mi) 
construction corridor. We have made a preliminary determination that 
the HCP and permit application are eligible for categorical exclusion 
under the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 
4321 et seq.).

Background

    Section 9 of the Endangered Species Act of 1973, as amended (ESA; 
16 U.S.C. 1531 et seq.), and its implementing regulations prohibit the 
``take'' of animal 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). However, under 
section 10(a) of the ESA, we may

[[Page 67947]]

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 incidental take permits (ITP) for endangered and 
threatened species, respectively, are found in the Code of Federal 
Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Applicant's Proposed Project

    The applicant requests a 15-year ITP to take the federally 
threatened eastern massasauga rattlesnake. The applicant determined 
that take is reasonably certain to occur incidental to the construction 
and maintenance of a 55.8-mi pipeline replacement project, covering 
approximately 721 acres (ac) of private land, 44 ac of which occur 
within presumed occupied EMR habitat. The applicant has submitted a HCP 
in support of their application for an ITP to address take of EMR. The 
HCP's area encompasses the counties of Clinton, Livingston, Shiawassee, 
Ingham, and Washtenaw, located in southern Michigan. The covered 
activities include the following: surveying and staking, vegetation 
clearing, grading, stringing and bending of pipe, trenching, 
backfilling, horizontal directional drilling, hydrostatic testing, 
habitat restoration, and ongoing pipeline maintenance. The applicant 
has determined that actions associated with construction and 
maintenance within the existing 56-mi pipeline corridor have the 
potential to incidentally take the species.
    The proposed conservation strategy in the applicant's proposed HCP 
is designed to avoid, minimize, and mitigate the impacts of the covered 
activity on EMR. The biological goals and objectives are to conduct the 
project in a manner that minimizes impacts and maintains persistence of 
EMR within the HCP area, to restore habitat postconstruction to 
maintain or improve preexisting habitat quality and function for EMR, 
and to monitor response of EMR to best management practices (BMPs) and 
site restoration to inform conservation efforts. The authorized level 
of take from the project is no more than two individual snakes over the 
15-year project duration. To offset the impacts of the taking of 
snakes, the applicant proposes to restore the site to previous or 
improved condition and to provide conservation funds for EMR habitat 
protection and public education.

Our Preliminary Determination

    We are requesting comments on our preliminary determination that 
the applicant's proposal will have a minor or negligible effect on the 
eastern massasauga and that the plan qualifies as a low-effect HCP as 
defined by our Habitat Conservation Planning Handbook (December 2016). 
We base our determinations on three criteria: (1) Implementation of the 
proposed project as described in the HCP would result in minor or 
negligible effects on federally listed, proposed, and/or candidate 
species and their habitats; (2) implementation of the HCP would result 
in minor or negligible effects on other environmental values or 
resources; and (3) HCP impacts, considered together with those of other 
past, present, and reasonably foreseeable future projects, would not 
result in cumulatively significant effects. In our analysis of these 
criteria, we have made a preliminary determination that the approval of 
the HCP and issuance of an ITP qualify for categorical exclusion under 
the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), 
as provided by the Department of the Interior implementing regulations 
in part 46 of title 43 of the Code of Federal Regulations (43 CFR 
46.205, and 46.215). However, based upon our review of public comments 
that we receive in response to this notice, this preliminary 
determination may be revised.

National Environmental Policy Act

    The issuance of an ITP is a Federal action that triggers the need 
for compliance with NEPA. The U.S. Fish and Wildlife Service (Service) 
has made a preliminary determination that the applicant's project and 
the proposed mitigation measures would individually and cumulatively 
have a minor or negligible effect on the covered species and the 
environment. Therefore, we have preliminarily concluded that the ITP 
for this project would qualify for categorical exclusion, and the HCP 
would be low effect under our NEPA regulations at 43 CFR 46.205.

Next Steps

    The Service will evaluate the permit application and the comments 
received to determine whether the application meets the requirements of 
section 10(a) of the ESA. We will also conduct an intra-Service 
consultation pursuant to section 7 of the ESA to evaluate the effects 
of the proposed take. After considering the above findings, we will 
determine whether the permit issuance criteria of section 10(a)(l)(B) 
of the ESA have been met. If met, the Service will issue the requested 
ITP to the applicant.

Request for Public Comments

    The Service invites comments and suggestions from all interested 
parties during a 30-day public comment period (see DATES). In 
particular, information and comments regarding the following topics are 
requested:
    1. The environmental effects that implementation of any alternative 
could have on the human environment;
    2. Whether or not the significance of the impact on various aspects 
of the human environment has been adequately analyzed;
    3. Any threats to eastern massasauga that may influence their 
populations over the life of the ITP that are not addressed in the 
proposed HCP or Catex screening form; and
    4. Any other information pertinent to evaluating the effects of the 
proposed action on the human environment.

Availability of Public Comments

    You may submit comments by one of the methods shown under 
ADDRESSES. We will post on https://www.regulations.gov all public 
comments and information received electronically or via hardcopy. All 
comments received, including names and addresses, will become part of 
the administrative 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. 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 Endangered 
Species Act (16 U.S.C. 1531 et seq.) and its implementing regulations 
(50 CFR 17.22) and the National Environmental Policy Act (42 U.S.C. 
4371 et seq.) and its implementing regulations (40 CFR 1506.6; 43 CFR 
part 46).

Lori Nordstrom,
Assistant Regional Director, Ecological Services.
[FR Doc. 2022-24607 Filed 11-9-22; 8:45 am]
BILLING CODE 4333-15-P