Notice2024-23573
Draft Environmental Impact Statement for a General Conservation Plan for the Desert Tortoise in California
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 11, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), provide this notice to open a public review period and announce public meetings in accordance with the National Environmental Policy Act. We have prepared a draft environmental impact statement to evaluate the impacts on the human environment related to our proposal to approve and use a general conservation plan for the federally threatened desert tortoise (Gopherus agassizii) in California to streamline the incidental take permitting process under the Endangered Species Act. We invite comment from the public and local, State, Tribal, and Federal agencies.
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<title>Federal Register, Volume 89 Issue 198 (Friday, October 11, 2024)</title>
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[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Notices]
[Pages 82618-82622]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23573]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[Docket No. FWS-R8-ES-2023-0084; FXES11140800000-245-FF08ECAR00]
Draft Environmental Impact Statement for a General Conservation
Plan for the Desert Tortoise in California
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice of availability; notice of public meetings; request for
comments.
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[[Page 82619]]
SUMMARY: We, the U.S. Fish and Wildlife Service (Service), provide this
notice to open a public review period and announce public meetings in
accordance with the National Environmental Policy Act. We have prepared
a draft environmental impact statement to evaluate the impacts on the
human environment related to our proposal to approve and use a general
conservation plan for the federally threatened desert tortoise
(Gopherus agassizii) in California to streamline the incidental take
permitting process under the Endangered Species Act. We invite comment
from the public and local, State, Tribal, and Federal agencies.
DATES: Submitting Comments: You may submit comments via U.S. mail or
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
<bullet> Online: Comments submitted at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
must be received by 11:59 p.m. eastern time on December 10, 2024.
<bullet> U.S. mail: Hardcopy comments must be received or
postmarked on or before December 10, 2024. (See ADDRESSES.)
Virtual Public Meetings: The Service will hold virtual public
meetings on November 12, 2024, from 10 a.m. to 11:30 a.m. Pacific Time,
and on November 13, 2024, from 6 p.m. to 8:30 p.m. Pacific Time. For
more information, see Public Comments and Virtual Public Meetings under
SUPPLEMENTARY INFORMATION.
ADDRESSES:
Obtaining Documents: The document this notice announces, as well as
any comments and other materials that we receive, will be available for
public inspection online in Docket No. FWS-R8-ES-2023-0084 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Submitting Comments: You may submit comments by one of the
following methods:
<bullet> Online: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting comments on Docket No. FWS-R8-ES-2023-0084.
<bullet> U.S. mail: Public Comments Processing; Attn: Docket No.
FWS-R8-ES-2023-0084; U.S. Fish and Wildlife Service; MS: PRB/3W; 5275
Leesburg Pike; Falls Church, VA 22041-3803.
We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post online any personal information that
you provide. We request that you submit comments by only one of the
methods above. For additional information about submitting comments,
see Public Comments and Virtual Public Meetings under SUPPLEMENTARY
INFORMATION.
Public Meetings: A link and access instructions for the virtual
public meetings will be posted to <a href="https://www.fws.gov/office/carlsbad-fish-and-wildlife">https://www.fws.gov/office/carlsbad-fish-and-wildlife</a> at least 1 week prior to the public meeting dates.
Reviewing U.S. Environmental Protection Agency Comments on the
Draft Environmental Impact Statement: See EPA's Role in the EIS Process
under SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Peter Sanzenbacher, by telephone at
442-222-0165 or by email at <a href="/cdn-cgi/l/email-protection#1c6c7968796e436f7d726679727e7d7f74796e5c7a6b6f327b736a"><span class="__cf_email__" data-cfemail="bdcdd8c9d8cfe2cedcd3c7d8d3dfdcded5d8cffddbcace93dad2cb">[email protected]</span></a>. 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 prepared a draft environmental impact statement (DEIS)
pursuant to the requirements of the National Environmental Policy Act
of 1969, as amended (NEPA; 42 U.S.C. 4321 et seq.), to analyze the
effects on the human environment of approving and using a general
conservation plan (GCP) for the federally threatened desert tortoise
(Gopherus agassizii) to streamline the incidental take permitting
process in California. This notice of availability opens a public
comment period on the DEIS and announces public meetings. The U.S.
Bureau of Land Management (Bureau) is serving as a cooperating agency
under NEPA, as some lands under consideration for mitigation activities
are administered by the Bureau.
Background
Section 9 of the Endangered Species Act, as amended (ESA; 16 U.S.C.
1531 et seq.), prohibits the ``take'' of fish and wildlife species
listed as endangered under section 4 (16 U.S.C. 1538 and 16 U.S.C.
1533, respectively). The ESA's implementing regulations extend, under
certain circumstances, the prohibition of take to threatened species
(50 CFR 17.31). Under section 3 of the ESA, the term ``take'' means to
``harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or
collect, or attempt to engage in any such conduct'' (16 U.S.C.
1532(19)). The regulations define ``harm'' as ``an act which actually
kills or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering'' (50 CFR 17.3). Regulations at 50 CFR
17.3 further define ``harass'' 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.''
Under section 10(a)(1)(B) of the ESA, the Service may issue permits
to authorize incidental take of listed fish and wildlife species. The
implementing regulations for incidental take permits define
``incidental taking'' as ``any taking otherwise prohibited, if such
taking is incidental to, and not the purpose of, the carrying out of an
otherwise lawful activity'' (50 CFR 17.3). Section 10(a)(2)(B) of the
ESA lists the criteria for the Service's issuance of incidental take
permits to non-Federal entities. If the applicant meets the following
criteria, the Service must issue an incidental take permit:
1. The taking will be incidental;
2. The applicant will, to the maximum extent practicable, minimize
and mitigate the impacts of such taking;
3. The applicant will ensure that adequate funding for the plan
will be provided;
4. The taking will not appreciably reduce the likelihood of the
survival and recovery of the species in the wild; and
5. The applicant will carry out any other measures that the Service
may require as being necessary or appropriate for the purposes of the
conservation plan in support of issuance of an incidental take permit.
Desert Tortoise General Conservation Plan
The Service proposes to approve and use a GCP that would provide
specific direction regarding how to best minimize, mitigate, and
monitor the effects of incidental take to applicants seeking ESA
section 10(a)(1)(B) permits for the desert tortoise within a defined
permit area. Under standard practices, applicants are responsible for
developing the ``conservation plan'' required by section 10(a)(2)(A) of
the ESA; the development of the conservation plans and iterative
reviews require substantial time and effort, both for the applicant and
Service staff. The Service then must prepare a NEPA document for public
review, address any comments received from the public, conduct an
internal consultation pursuant to section 7(a)(2) of the ESA, and
conclude the NEPA process before reaching a decision on whether to
issue the incidental take permit.
[[Page 82620]]
In almost every incidental take permit that the Service has
processed since the listing of the desert tortoise in 1990 (April 2,
1990; 55 FR 12178), the applicant and Service agreed on the most
appropriate means of minimizing, mitigating, and monitoring the effects
of take on desert tortoises soon after the applicant contacted us.
However, the standard practices described in the previous paragraph
generally require at least 12 to 24 months to complete. A streamlined
approach to the process, with more direction upfront from Service
staff, would result in more effective means of minimizing and
mitigating impacts to desert tortoises and allow staff to expend more
time on implementing recovery work, with overall concomitant positive
effects on the recovery of the species. Such a process would also
provide a higher degree of certainty to applicants.
Within the GCP planning area, we propose to cover commercial,
agricultural, residential, industrial, and infrastructure activities
within the defined permit area. The permit area generally encompasses
non-Federal lands outside of desert tortoise conservation areas. The
GCP would also cover the operations and maintenance of existing non-
Federal facilities, such as utilities' transmission and distribution
lines. The Service intends the covered activities to be inclusive; that
is, we will consider for coverage any future activity that has the same
general effects on the desert tortoise as those described in the GCP.
The Service will retain the right to recommend that the non-Federal
entity pursue an individual incidental take permit if the scope of the
proposed activity is likely to affect desert tortoises in a manner that
we have not considered in the GCP.
Additionally, the permit area includes existing rights-of-way in
the California desert where the Federal agency no longer has
discretionary authority; consequently, interagency consultation,
pursuant to section 7(a)(2) of the ESA, does not apply in these areas.
The GCP would apply to such rights-of-way that lie within conservation
areas. Within conservation areas, the GCP would be available only for
projects intended to improve the safety and functionality of the
existing right-of-way; the Service will not consider its use
appropriate if the proposed project changes the basic function of the
existing right-of-way.
We define ``permit area'' and ``mitigation area'' in the GCP. The
permit area includes the locations where the incidental take permits
deriving from the GCP would be available to applicants. The permit area
is comprised of non-Federal lands outside of desert tortoise
conservation areas in southern Inyo County, eastern Kern County,
northern Los Angeles County, the desert portion of San Bernardino
County, eastern Riverside County, eastern San Diego County, and
portions of Imperial County and the existing non-Federal rights-of-way
across Federal lands under certain circumstances.
The required mitigation for issuance of an incidental take permit
would occur within the boundaries of the mitigation area. The
mitigation area generally includes ``desert tortoise conservation
areas,'' which the recovery plan for the desert tortoise describes as
Bureau conservation lands (e.g., California Desert National
Conservation Lands and areas of critical environmental concern) as
identified in the California Desert Conservation Area Plan, as amended
by the Desert Renewable Energy Conservation Plan, National Park Service
lands, and other conservation areas or easements managed for desert
tortoises.
The Mojave population of desert tortoise is the only species
proposed for coverage under the GCP. The Service listed the Mojave
population of desert tortoise (all desert tortoises north and west of
the Colorado River in Arizona, Utah, Nevada, and California) as
threatened on April 2, 1990. We designated critical habitat for the
desert tortoise in California, Nevada, Arizona, and Utah in a final
rule published February 8, 1994 (59 FR 5820).
The GCP would include an analysis of impacts to the desert tortoise
that are likely to result from covered activities. We anticipate that
incidental take permits under the GCP would result in the take of few
desert tortoises. We have reached that conclusion because, since the
listing of the desert tortoise in 1990, we have issued 14 incidental
take permits for the desert tortoise in the planning area that have
resulted in the translocation of approximately 52 desert tortoises. We
are unaware of any desert tortoises that died during permitted
activities.
Additionally, we have limited the GCP's permit area to portions of
the desert where conservation of the desert tortoise in the long term
is infeasible, with the exception of non-Federal rights-of-way that
comprise a negligible portion of the planning area. Based on analysis
in the original and revised recovery plans for the desert tortoise, we
consider recovery of the desert tortoise to be infeasible in the permit
area because most of the land there is in private ownership. It would
be practically and financially impossible to secure and manage habitat
in that area, which also frequently includes rural development and its
associated impacts to desert tortoises.
We have not proposed a numerical limit on the number of desert
tortoises that use of the GCP may affect. Instead, if five large desert
tortoises die because of activities for which incidental take was
permitted under the GCP in any calendar year, we will assess the
adequacy of the minimization measures in the GCP and the specific
measures associated with individual incidental take permits. If
administrative changes to the minimization measures in the GCP or the
specific measures associated with the individual incidental take
permits are not practical, we will not approve additional incidental
take permits in that calendar year unless we amend the GCP. We would
track the aggregate amount of incidental take and make that information
available to the public.
The biological goals of the GCP would focus on minimizing the
amount of take of desert tortoises and maximizing the conservation
benefits of the mitigation that results from the issuance of incidental
take permits. To minimize the number of desert tortoises that proposed
actions would kill or injure, the Service would require permittees to
implement standard methods, such as fencing work areas, surveying for
individuals within project areas, translocating desert tortoises to
suitable off-site habitat, implementing worker education programs,
implementing measures to manage predators on site, and contributing to
the regional management program for common ravens (Corvus corax). Over
the period of time that the GCP would be available for use, the Service
would update protocols for various protective measures, such as testing
for disease as new information and improved methods become available.
To mitigate the effects of take and maximize conservation benefits
for desert tortoises, the GCP would provide applicants with several
options, such as land acquisition (securing and conserving habitat),
non-acquisition (restoration and enhancement of habitat), purchase of
mitigation bank credits, other actions needed to protect and conserve
desert tortoises, or a combination of these activities. The Service
would require that all mitigation occur within the conservation areas,
as defined in the recovery plan for the desert tortoise and mapped in
the GCP, that will contribute to long-term conservation of desert
tortoise.
[[Page 82621]]
National Environmental Policy Act Compliance
Public Scoping Period
On July 17, 2023 (88 FR 45437), in accordance with NEPA, we
published a Federal Register notice to open a public scoping period and
announce our intention to prepare an EIS to evaluate the impacts on the
human environment related to our proposal to approve and use a GCP for
the federally threatened desert tortoise. We took comments until August
31, 2023, and also held three public meetings during the scoping
period.
Draft Environmental Impact Statement
The Service, with input from the Bureau as a cooperating agency,
and after full consideration of all comments received during the public
scoping period and during the meetings, has prepared a DEIS to evaluate
the impacts of the proposed GCP action on the human environment,
consistent with the purpose and goals of NEPA. This DEIS was prepared
pursuant to the Council on Environmental Quality's (CEQ) implementing
NEPA regulations at 40 CFR parts 1500-1508, which became effective on
May 20, 2022 (April 20, 2022, 87 FR 23453), and in compliance with the
amendments to NEPA included in the Fiscal Responsibility Act of 2023
(Pub. L. 118-5, 137 Stat. 10 (2023)). The DEIS analyzes the proposed
action and a reasonable range of alternatives to the proposed action.
The environmental consequences of each alternative, including the
direct, indirect, and cumulative effects, were analyzed to determine if
significant impacts to the human environment would occur. On May 1,
2024, CEQ published a final rule amending the NEPA implementing
regulations (89 FR 35442). The final rule became effective on July 1,
2024, and applies to NEPA processes that begin after that date (40 CFR
1506.12). The NEPA process for this GCP began in July 2023.
We analyzed three alternatives in detail in the DEIS.
Alternative 1--No-Action Alternative: Under the no-action
alternative, the Service would not approve and use the GCP to
streamline the incidental take permit process for the desert tortoise
in California. The Service would continue to evaluate and process
individual applications for incidental take permits on a case-by-case
basis and prepare a NEPA document for each incidental take permit
application; this process generally takes 12 to 24 months to complete.
Alternative 2--Proposed Action: The proposed action is the
Service's approval and use of the GCP for the desert tortoise in
California. The GCP would streamline the permitting process for
incidental take permits by providing clear direction to project
proponents regarding the appropriate measures to minimize the
incidental take of desert tortoises in the permit area and to mitigate
incidental take in the mitigation area. The approximately 15.2-million-
acre (ac) planning area to be covered by the GCP comprises a large
portion of the desert tortoise's range in California, including
portions of Inyo, Kern, Los Angeles, San Bernardino, Riverside, San
Diego, and Imperial Counties. Within the planning area, the Service has
identified a permit area, which includes approximately 2.6 million ac
of non-Federal lands outside of desert tortoise conservation areas and
existing non-Federal rights-of-way across Federal lands where
proponents can apply for incidental take permits for the desert
tortoise for covered activities. The Service also has identified an
approximately 8.6-million-ac mitigation area on Bureau conservation
lands (e.g., areas of critical environmental concern, California Desert
National Conservation Lands), National Park Service lands, and other
conservation areas or easements managed for desert tortoises where
mitigation resulting from issuance of incidental take permits under the
GCP would occur.
Alternative 3--Action Alternative: Under alternative 3, the Service
would pursue approval of a GCP for the desert tortoise to facilitate
the issuance of incidental take permits, as described under alternative
2. The permit area, covered activities in the permit area, and measures
to reduce the level of impact from covered activities would be as
described under the proposed action. Under this alternative, mitigation
would only occur on lands within desert tortoise conservation areas
within National Park Service lands, California Desert National
Conservation Lands administered by the Bureau, and non-Federal lands
that either are in conservation management or that are acquired for
conservation management. Other lands included in the mitigation area
for the proposed action, such as areas of critical environmental
concern, would not be eligible for mitigation; this would reduce
mitigation area lands to approximately 7.7 million ac.
EPA's Role in the EIS Process
The EPA is charged under section 309 of the Clean Air Act with
reviewing all Federal agencies' EISs and commenting on the adequacy and
acceptability of the environmental impacts of proposed actions. Under
the CEQ NEPA regulations, EPA is also responsible for administering the
EIS filing process. EPA is also publishing a notice in the Federal
Register announcing this DEIS. The publication date of EPA's notice of
availability is the official beginning of the public comment period.
EPA serves as the repository (EIS database) for EISs prepared by
Federal agencies. You may search for EPA comments on EISs, along with
EISs themselves, at <a href="https://cdxapps.epa.gov/cdx-enepa-II/public/action/eis/search">https://cdxapps.epa.gov/cdx-enepa-II/public/action/eis/search</a>.
Public Comments and Virtual Public Meetings
Submitting Comments
You may submit your comments and materials on the draft GCP and the
DEIS by one of the methods in ADDRESSES. We specifically request
information on the following:
1. Biological information, analysis, and relevant data concerning
the desert tortoise, other wildlife, and ecosystems.
2. Potential effects that the proposed GCP could have on the desert
tortoise, and other endangered or threatened species, and their
habitats, including the interaction of the effects of covered
activities with climate change and other stressors.
3. Adequacy of the GCP to minimize and mitigate the impact of the
taking on desert tortoise, including but not limited to conservation
measures, conditions on covered activities, and adaptive management
procedures.
4. Potential effects that the proposed action could have on other
aspects of the human environment, including effects on plants and
animals, water resources, and aesthetic, historic, cultural, economic,
social, environmental justice, climate change, or health effects.
5. The alternatives analysis conducted by the Service, including
the alternatives analyzed, the range of alternatives analyzed, and the
alternatives considered but not analyzed in detail.
6. The presence of historic properties--including archaeological
sites, buildings and structures, historic events, sacred and
traditional areas, and other historic preservation concerns--in the
proposed permit area, which are required to be considered in project
planning by the National Historic Preservation Act.
7. Cumulative effects, which are effects on the environment that
result from the incremental effects of the action when added to the
effects of other past, present, and reasonably
[[Page 82622]]
foreseeable actions, as well as any connected actions that are closely
related and should be discussed in the same DEIS.
8. The alternatives, information, and analyses submitted during the
public scoping period and the summary thereof.
9. Other information relevant to the GCP and its impacts on the
human environment.
Virtual Public Meetings
We will conduct two virtual public meetings. See DATES and
ADDRESSES for the dates and times. During the virtual public meetings,
the Service and Bureau will present information pertinent to the GCP
and give the public the opportunity to ask questions about the draft
GCP and DEIS. Oral or written comments will not be accepted during the
meeting; written comments may be submitted by one of the methods listed
in ADDRESSES.
Reasonable Accommodations
Persons needing reasonable accommodations to participate in the
public meetings should contact the Service's Carlsbad Fish and Wildlife
Office, using one of the methods listed in ADDRESSES. To allow
sufficient time to process requests, please make contact at least 15
days before the public meetings. Information regarding this proposed
action is available in alternative formats upon request.
Public Availability of Comments
You may submit your comments and materials by one of the methods
listed in ADDRESSES. Before including your address, phone number, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--might be made publicly available at any time. Although 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. Comments and materials we receive, as
well as references for supporting documentation we used in preparing
the DEIS, will be available for public inspection online in Docket No.
FWS-R8-ES-2023-0084 at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> (see FOR FURTHER
INFORMATION CONTACT).
Next Steps and Decision To Be Made
After public review and comment, the Service will evaluate the GCP,
DEIS, and any comments received to determine whether the GCP provides
an adequate basis for meeting the requirements of section 10(a)(2)(B)
of the ESA for future permit applications submitted under the GCP. The
decision whether to approve and use the GCP will also be informed by
the data, analyses, and findings in the EIS and public comments
received on the DEIS and GCP. The Service will document its
determinations in an ESA section 10 findings document, ESA section 7
biological opinion, and NEPA record of decision that will be developed
at the conclusion of the ESA and NEPA compliance processes. FWS expects
to submit a final EIS (FEIS) for publication in the Federal Register by
May 2025. At least 30 days after the FEIS is published, we expect that
the Service will complete a record of decision on the GCP in accordance
with applicable timeframes established in 40 CFR 1506.11 (2022) and
issue a decision on the GCP. The current estimate for the issuance of
record of decision is July 2025.
Authority
We provide this notice in accordance with the requirements of NEPA
and its implementing regulations (40 CFR 1503.1 and 1506.6; 2022).
Michael J. Senn,
Assistant Regional Director--Ecological Services, California-Great
Basin Region, U.S. Fish and Wildlife Service, Sacramento, California.
[FR Doc. 2024-23573 Filed 10-10-24; 8:45 am]
BILLING CODE 4333-15-P
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