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Programmatic Safe Harbor Agreement and Receipt of an Application for an Enhancement of Survival Permit Associated With Proposed Restoration and Reintroduction Activities for Wyoming Toads Within Suitable Wetland Habitat of Albany County, WY

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Fish and Wildlife Service, Interior.


Notice of availability and receipt of application.


The Laramie Rivers Conservation District (Applicant) has applied to the Fish and Wildlife Service (Service) for an Enhancement of Survival Permit (ESP) for the Wyoming toad pursuant to section 10(a)(1)(A) of the Endangered Species Act of 1973 (U.S.C. 1531 et seq.), as amended (Act). This permit application includes a draft Safe Harbor Agreement (SHA) between the Applicant and the Service. The proposed SHA and permit would become effective upon signature of the SHA and issuance of the permit and would remain in effect for 15 years. We have made a preliminary determination that the proposed SHA and activities described in the permit application could potentially result in the take of Wyoming toads when fully implemented; thus, these and all other impacts have been reviewed through an Environmental Assessment (EA) under the National Environmental Policy Act of 1969, as amended (NEPA). This notice is provided pursuant to NEPA and section 10 of the Act and the Service's Safe Harbor Policy (64 FR 32717). The Service specially requests information, views, and opinions from the public via this notice. Further, the Service is specifically soliciting information regarding the adequacy of the SHA as measured against the Service's Safe Harbor Policy and the regulations that implement it.


Written comments on the SHA and ESP application should be sent to the Service's Regional Office (see ADDRESSES) and should be received on or before June 14, 2004.


Persons wishing to review the SHA and ESP application may obtain a copy by writing the Service's Mountain-Prairie Regional Office, Denver, Colorado. Documents also will be available for public inspection during normal business hours at the Regional Office, 134 Union Boulevard, Denver, Colorado 80228-1807, or the Wyoming Field Office, U.S. Fish and Wildlife Service, 4000 Airport Parkway, Cheyenne, Wyoming 82001. Written data or comments concerning the SHA or ESP application should be submitted to the Regional Office and must be in writing to be processed. Comments must be submitted in writing to be adequately considered in the Service's decision-making process. Please reference permit number TE-083409 in your comments, or in requests of the documents discussed herein.

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Pat Mehlhop, Regional Safe Harbor Coordinator, (see ADDRESSES), telephone 303-236-4215, facsimile 303-236-0027; or Brian T. Kelly, Field Supervisor, Wyoming Field Office, (see ADDRESSES), telephone 307-772-2374, facsimile 307-772-2358.

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The Wyoming toad is a glacial relict species which was formerly common in the Laramie Basin in Albany County, Wyoming. The population was noted to decrease in the early 1960s. One isolated population was discovered in 1987. This site later became the Mortenson Lake National Wildlife Refuge and is currently the only place in the world this species is found. A captive breeding program was initiated in 1993 and reintroduction at Mortenson Lake began in 1995. The reestablishment of the Wyoming toad at Mortenson Lake has been severely hindered, mainly by the presence of the amphibian chytrid fungus (Batrachochytrium dendrobatidis). This fungus has been implicated in the declines of several other amphibian species worldwide. The presence of the fungus, as well as deteriorating water quality and chemistry at Mortenson Lake, make it necessary to seek suitable reintroduction sites in Albany County, Wyoming.

The primary objective of this SHA is to encourage voluntary conservation measures and/or reintroduction attempts to benefit the Wyoming toad by relieving a landowner, who enters into a Cooperative Agreement with the Applicant, from any additional section 9 liability under the Act beyond that which exists at the time the Cooperative Agreement is signed (“regulatory baseline”). An SHA encourages landowners to conduct voluntary conservation activities and assures them that they will not be subjected to increased restrictions should their beneficial stewardship efforts result in increased endangered species populations. Application requirements and issuance criteria for ESPs through SHAs are found in 50 CFR 17.22(c). As long as enrolled landowners allow the agreed upon habitat improvements to be completed on their property and maintain their responsibilities, they may make use of the property during the permit term, even if such use results in the take of individual Wyoming toads or harm to their habitat. Opportunity to enroll in the SHA with the Applicant will be open to landowners possessing suitable lacustrine wetland habitat in Albany County, Wyoming. They will receive a Certificate of Inclusion when they sign a Cooperative Agreement. The Cooperative Agreement will include—(1) A map of the property; (2) delineation of the portion of the property to be enrolled and its acreage; (3) physical description of the property; (4) baseline responsibility (zero); (5) the responsibilities of the Cooperator and the Applicant; and (6) management activities.

The Applicant will provide draft copies of Cooperative Agreements to the Service for an opportunity to review and concur with the recommended habitat management activities. The Service will have a period of 30 calendar days in which to make comments. If no comments are received within 30 days, the Applicant may proceed to finalize the Cooperative Agreement. The Applicant, as the permittee, will be responsible for annual monitoring and reporting related to implementation of the SHA and Cooperative Agreements and fulfillment of their provisions. Upon request by the Service, the Applicant will make available records and materials related to implementation of the program.

Within the Cooperative Agreement, participating landowners will be asked to choose one of two conservation measures necessary to provide a net conservation benefit to the toad. These are to—(1) allow reintroduction of Wyoming toads onto enrolled property and/or (2) maintain, enhance, or create suitable Wyoming toad habitat. Moreover, any additional conservation activities above and beyond the required conservation measurements will be covered by the ESP. These actions, where appropriate, could include (but are not limited to)—(1) allowing reintroduction of Wyoming toads on the enrolled portions of the property; (2) voluntary changes in grazing and haying regime, pesticide, and herbicide use in accordance with the Service's 1994 Biological Opinion addressing pesticides and herbicides and label Start Printed Page 26879restrictions, or other activities to enhance toad habitat and minimize take; or (3) facilitation of the implementation of other objectives recommended by the Wyoming Toad Recovery Plan.

While determining the effects of this action, the Service considered the action or impact area to be the maximum number of enrolled properties and a 1-mile radius from these properties to account for toad dispersal, which could include adjacent, neighbor lands. The effect to the Wyoming toad through implementation of landowner day-to-day operations (grazing, haying, etc.) on all potential enrolled lands will be evaluated during the section 7 consultation process.

After maintenance of the restored/created/enhanced Wyoming toad habitat on the property or allowing reintroduction of Wyoming toads on the property for the agreed-upon term, cooperators may then conduct otherwise lawful activities on their property that result in the partial or total elimination of the restored habitat and the incidental taking of Wyoming toads as a result of such habitat elimination. However, the restrictions on returning a property to its original baseline condition include—(1) Wyoming toads may not be captured, killed, or otherwise directly “taken,” (2) the Applicant and the Service will be notified a minimum of 15 calendar days prior to the activity and provided the opportunity to capture, rescue, and/or translocate any Wyoming toads, if necessary and appropriate; and (3) return to baseline conditions must be completed within the 15-year term of the permit issued to the Applicant. Cooperative Agreements may be extended if the Applicant's permit is renewed and that renewal allows for such extension.

The Service has evaluated the impacts of this action under the National Environmental Policy Act by drafting an Environmental Assessment. The documentation also is subject to public comment and will be made available to the public concurrently with the availability of the SHA and ESP.

The Service also will evaluate whether the issuance of the ESP complies with section 7 of the Act by conducting an intra-Service section 7 consultation on the issuance of the permit. The results of the biological opinion, in combination with the above findings and any public comments, will be used in the final analysis to determine whether or not to issue the requested ESP, pursuant to the regulations that guide issuance of this type of permit.

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Dated: April 30, 2004.

Mike Stempel,

Acting Regional Director, Denver, Colorado.

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[FR Doc. 04-10949 Filed 5-13-04; 8:45 am]