Notice2022-02939
Application for an Incidental Take Permit; Oil and Gas Habitat Conservation Plan for the Lesser Prairie-Chicken; Colorado, Kansas, New Mexico, Oklahoma, and Texas
Primary source
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Published
February 11, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 29 (Friday, February 11, 2022)</title>
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[Federal Register Volume 87, Number 29 (Friday, February 11, 2022)]
[Notices]
[Pages 8031-8033]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.fws.gov/southwest/es/ArlingtonTexas">https://www.fws.gov/southwest/es/ArlingtonTexas</a>.
Submitting comments: You may submit written comments by email to
<a href="/cdn-cgi/l/email-protection#9bfae9f7fee8dbfdece8b5fcf4ed"><span class="__cf_email__" data-cfemail="fd9c8f91988ebd9b8a8ed39a928b">[email protected]</span></a>. 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
[[Page 8032]]
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
[[Page 8033]]
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
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