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Michigan DNR: Application for an Incidental Take Permit

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Fish and Wildlife Service, Interior.


Notice of Availability of a Draft Habitat Conservation Plan and Draft Environmental Assessment for the Karner blue butterfly; receipt of application for an incidental take permit; request for comments.


The Michigan Department of Natural Resources (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for a 20-year incidental take permit (ITP) for the federally endangered Karner blue butterfly (Lycaeides melissa samuelis) (KBB) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The ITP would allow the Applicant to engage in habitat management, right-of-way maintenance, and certain development activities in occupied KBB habitat on non-Federal land in Michigan. The permit application includes a draft Habitat Conservation Plan (HCP) and draft Environmental Assessment (EA) that describes the proposed action and measures the Applicant will undertake to minimize and mitigate take of KBB. Section 9 of the Act and its implementing regulations prohibit the take of animal species listed as endangered or threatened. The definition of take under the Act includes the following activities: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). Section 10 of the Act, 16 U.S.C. 1539, establishes a program whereby persons seeking to pursue activities that otherwise could give rise to liability for unlawful “take” of federally protected species may receive an ITP, which protects them from such liability. To obtain an ITP, an applicant must submit a HCP containing appropriate minimization and mitigation measures and ensure that the taking is incidental to, and not the purpose of, an otherwise lawful activity (16 U.S.C. 1539(a)(1)(B) and 1539(a)(2)(A). Once we have determined the applicant has satisfied these and other statutory criteria, we may issue the ITP.

This notice, provided pursuant to section 10(a)(1)(B) of the Endangered Species Act, as amended, advises the public and other agencies of the availability of the draft HCP and draft EA for review and comment.


To ensure consideration, we must receive your written comments on or before March 25, 2008.


Send your comments or request information by any of the following methods:

  • U.S. Mail: Comments should be sent to the Regional Director, U.S. Fish and Wildlife Service, Division of Ecological Services, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056.
  • Facsimile: 612-713-5292.
  • E-Mail:

All comments received become part of the official public record. Public requests for comments submitted will be handled in accordance with the Freedom of Information Act and the Council on Environmental Quality's NEPA regulations [40 CFR 1506.6(f)]. Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request we withhold their home address from the record, which we will honor to the extent allowable by law. If a respondent Start Printed Page 4620wishes us to withhold his/her name and/or address, this must be stated prominently at the beginning of the comment.

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Peter Fasbender at 612-713-5343 or

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Availability of Documents

Individuals requesting copies of the draft EA and draft HCP should contact the U.S. Fish and Wildlife Service by telephone at (612) 713-5343 or by letter (see ADDRESSES above). Copies of the draft EA and draft HCP also are available for public review during normal business hours (8-4:30) at the U.S. Fish and Wildlife Service's Regional Office, located at 1 Federal Drive, Fort Snelling, Minnesota 55111, and at the U.S. Fish and Wildlife Service's East Lansing Field Office, located at 2651 Coolidge Road, Suite 101, East Lansing, Michigan 48823. Both documents are also available for review at the Service's Regional Web site at:​midwest/​Endangered/​permits/​hcp/​index.html.

Draft Habitat Conservation Plan

The purpose of the draft HCP is to manage habitat to promote recovery of the species and to minimize incidental take of KBB, mitigate the effects of any such take to the maximum extent practicable, and otherwise avoid any appreciable reduction in the likelihood of the survival and recovery of the KBB in the wild. The Applicant developed the draft HCP to facilitate conservation of oak savanna ecosystems (KBB habitat) and to help maintain occupied KBB habitat on both public and private land in Michigan. The goals of the HCP are to: (1) Support persistence of a functioning oak savanna ecosystem in Michigan; (2) support maintenance of oak-savanna habitats in a condition and configuration necessary to sustain existing populations of KBB and other associated species of concern; and (3) integrate diverse land uses with the conservation of the oak savanna ecosystem, KBB and other associated species of concern.

Active management of KBB habitat is necessary for the conservation of KBB and oak savanna. However, some management practices (e.g., prescribed burning, mowing) necessary for maintaining early-successional habitats may result in incidental take of KBB, and section 9 of the ESA prohibits take of an endangered species. Therefore, to obtain the legal authority to manage KBB habitat with the potential resultant take of KBB, the Applicant has applied for an ITP which would allow habitat management, utility and transportation right-of-way maintenance, and certain development activities that avoid or minimize and mitigate take when conducted in occupied KBB habitat.

The Applicant has applied for a statewide ITP and developed a statewide HCP with the intent that other land managers and/or landowners may participate as sub-permittees, subject to the conditions of the final permit, in the event their otherwise lawful activities result in take of KBB. Currently, land managers and landowners need to obtain authorization on a project-by-project basis to conduct legally the activities listed above. This situation results in a patchwork of projects conducted with little coordinated planning or consideration of range-wide impacts to KBB and other species of concern. By contrast, projects implemented under the HCP would be done according to consistent procedures in a highly coordinated effort. The HCP will facilitate efforts to evaluate and minimize the cumulative adverse impacts of individual projects to KBB populations.

Actions conducted under the HCP are not intended or expected to either increase or decrease the amount of occupied KBB habitat in Michigan. Rather, management action will be conducted to help prevent the loss of occupied habitat on non-Federal land. Maintenance of existing populations is a critical component of the KBB conservation program in Michigan. It is also consistent with objectives of the Federal Recovery Plan, which outlines a strategy for “maintaining extant populations” and “improving and stabilizing populations where the butterfly is imperiled.” Nevertheless, other management actions may take place on non-federal lands in Michigan not occupied by KBB that result in an increase in occupied habitat. The ITP and HCP described herein also are intended to cover any occupied KBB habitat that may develop in the future.

Draft Environmental Assessment

The purpose of the draft EA is to evaluate and publicly disclose the possible environmental consequences issuance of an ITP and implementation of the draft HCP could have on the quality of the physical, biological, and human environment, as required by the National Environmental Policy Act of 1969.

Prior to issuing the ITP, the Service is required to analyze alternatives considered in the development of the HCP. This analysis is contained in the draft EA, as required by the National Environmental Policy Act (NEPA), for the Federal action of issuing an ITP under section 10(a)(1)(B) of the Act. The draft EA considers two “action” alternatives and one “no action” alternative.

The area encompassed by the HCP may contain facilities eligible to be listed on the National Register of Historic Places and other historical or archeological resources may be present. The National Historic Preservation Act and other laws require these properties and resources be identified and considered in project planning. The public is requested to inform the Service of concerns about archeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns.


The public process for the proposed Federal action will be completed after the public comment period, at which time the Service will evaluate the permit application (if appropriate to the selected alternative), the HCP, and comments submitted thereon to determine whether the application meets the requirements of 10(a)(1)(B) of the Act. If the requirements are met, the Service will issue an ITP to the Applicant for incidental take of KBB.

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Dated: December 13, 2007.

Lynn Lewis,

Deputy Assistant Regional Director, Ecological Services, Region 3.

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[FR Doc. E8-1237 Filed 1-24-08; 8:45 am]