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Notice

Regional Habitat Conservation Plan, Hays County, TX

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Information about this document as published in the Federal Register.

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AGENCY:

Fish and Wildlife Service, Department of the Interior.

ACTION:

Notice of availability of final environmental impact statement, final Hays County regional habitat conservation plan, and draft record of decision.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), make available the final environmental impact statement (EIS), the final Hays County regional habitat conservation plan (RHCP) under the National Environmental Policy Act of 1969 (NEPA), and our draft record of decision (ROD). Our intended action is the issuance of a 30-year incidental take permit (ITP) for the Preferred Alternative (described below) under the Endangered Species Act of 1973, as amended (ESA), to Hays County, Texas (the County), to incidentally take golden-cheeked warbler (Dendroica chrysoparia) and black-capped vireo (Vireo atricapilla). Under the RHCP, the County will mitigate for take by establishing a preserve system of 10,000-15,000 acres to mitigate for incidental take of covered species. Each preserve acquisition will be subject to Service approval and will generate mitigation credits based on the number of acres and quality of potential occupied habitat for the covered species.

DATES:

We will issue a ROD and make a final permit decision no sooner than 30 days after publication of this notice. Comments on the final EIS and RHCP will be accepted for 30 days after publication of this notice.

ADDRESSES:

For where to review documents and submit comments see Reviewing Documents and Submitting Comments in SUPPLEMENTARY INFORMATION.

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FOR FURTHER INFORMATION CONTACT:

Mr. Adam Zerrenner, Field Supervisor, Austin Ecological Services Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512/490-0057.

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SUPPLEMENTARY INFORMATION:

We, the U.S. Fish and Wildlife Service (Service), announce the availability of the Hays County final environmental impact statement; final regional habitat conservation plan, which we developed in compliance with the agency decision-making requirements of the National Environmental Policy Act (NEPA) of 1969, as amended; and our record of decision. We intend to implement the preferred alternative, which is implementation of the RHCP. We have described all alternatives in detail, and evaluated and analyzed them in our May 2010 final EIS and the final RHCP.

Based on our review of the alternatives and their environmental consequences as described in our final EIS, we intend to implement the preferred alternative (the proposed action). The selected proposed action is the issuance of a section 10(a)(l)(B) incidental take permit (ITP) to Hays County, Texas (the County), for incidental take of golden-cheeked warbler (Dendroica chrysoparia) and black-capped vireo (Vireo atricapilla). We refer to both species collectively as “the covered species.”

The term of the permit is 30 years (2011-2041). The County will implement mitigation and minimization measures according to the schedule in the RHCP. Under the RHCP, the County will mitigate for take by establishing a preserve system of 10,000-15,000 acres to mitigate for incidental take of covered species. Each preserve acquisition will be subject to Service approval and will generate mitigation credits based on the number of acres, and quality, of potential occupied habitat for the covered species. The number of mitigation credits allowed for each Start Printed Page 28061preserve will be based on, and commensurate with, Service policy and guidelines regarding mitigation (such as, but not limited to, the Guidance for the Establishment, Use, and Operation of Conservation Banks) in order to ensure that the quality of the mitigation is equal to or greater than the quality of the habitat impacted.

Background

The County applied to us for an ITP. As part of the permit application, the County developed and will implement the RHCP to meet the requirements of an ITP. Our issuance of an ITP would allow the County to take the covered species resulting from proposed construction, use, or maintenance of public or private land development projects; construction, maintenance, or improvement of transportation infrastructure; installation or maintenance of utility infrastructure; construction, use, or maintenance of institutional projects or public infrastructure; and management activities within Hays County, Texas, during the 30-year ITP term.

The Secretary of the Interior has delegated the authority to the Service to approve or deny an ITP in accordance with the ESA. To act on the County's permit application, we must determine that the RHCP meets the approval criteria specified in the ESA, including our regulations in the Code of Federal Regulations (CFR) at 50 CFR 17.22 and 17.32. The issuance of an ITP is a Federal action subject to NEPA compliance, including the Council on Environmental Quality Regulations for Implementing the Procedural Provisions of the NEPA (40 CFR 1500-1508).

On November 2, 2009, we issued a draft EIS and requested public comment on our evaluation of the potential impacts associated with issuance of an ITP for implementation of the RHCP and to evaluate alternatives, along with the draft RHCP (74 FR 56655). We included public comments and responses associated with the Draft EIS and Draft RHCP in an appendix to the final EIS.

Purpose and Need

The purpose of the section 10(a)(l)(B) permit is to authorize incidental take associated with the otherwise legal activities listed in the background section.

We identified key issues and relevant factors through public scoping and also through working with a Citizens Advisory Committee; Biological Advisory Team; and comments from the public. These issues included the need for: (1) Development to continue in the County; (2) minimization of impacts on covered species; and (3) mitigation of impacts on covered species. We thoroughly examined these issues in the draft and final EIS and RHCP. No new significant issues arose following publication of the draft documents.

Environmentally Preferable Alternative

Our selected alternative is the Proposed RHCP, the preferred alternative (Alternative B) as described in the final EIS. This alternative provides for the issuance of an ITP to the County for take that would occur as a result of projects described above. This alternative includes implementation of RHCP measures to minimize and mitigate the potential take of federally listed species to the maximum extent practicable. The intent of this alternative is to allow continued development in the County; to minimize the biological, environmental, and socioeconomic impacts; to satisfy the habitat and species needs; and meet issuance criteria of section 10 of the ESA.

For golden-cheeked warblers, the take associated with direct and indirect impacts to 9,000 acres of habitat are authorized over the life of the permit. These impacts shall be mitigated by a combination of purchasing mitigation credits in nearby conservation banks and by purchasing high quality habitat within Hays County for designated golden-cheeked warbler preserves. For black-capped vireos, the take associated with direct and indirect impacts to 1,300 acres of habitat are authorized over the life of the permit. Impacts will be mitigated primarily through habitat restoration, habitat management, enhancement of existing protected black-capped vireo habitat, or an alternate, Service-approved mitigation program.

We considered three additional alternatives in the final EIS:

Alternative A (No Action): The No Action alternative assumed that we would not issue a regional permit for the County. Although development could occur on lands not occupied by endangered species, development activities that would cause take of listed species would require individual authorizations through section 7 or section 10(a)(1)(B) of the ESA. Individual entities could also elect to avoid take on properties containing endangered species by avoiding direct and indirect impacts on the species (i.e., take-avoidance). Processing individual section 10(a) permits could cause delays in permit issuance, because we often take 1 to 2 years to process an individual permit.

Alternative C (Moderate Preserve System with a Take Limit): Compared with that under Alternative B, this alternative features the acquisition of a modestly sized, pre-determined preserve system and limits the amount of incidental take that would be authorized by the ITP. This alternative illustrates a conservation program that could be relatively easy for the County to afford, but (due to relatively smaller size of the preserve system compared to the proposed RHCP) might not satisfy the anticipated need for incidental take authorization over the duration of the plan.

Alternative D (Large-scale Preserve System): Compared with that under Alternative B, this alternative involves a conservation program that utilizes a pre-determined preserve approach. Under this alternative, the preserve system would be large enough to authorize the incidental take of any remaining golden-cheeked warbler or black-capped vireo habitat in the County, outside of the target acquisition area of the preserve system, during the duration of the plan.

Decision

We intend to issue an ITP allowing the County to implement the preferred alternative (Alternative B), as it is described in the final EIS. This intention is based on a thorough review of the alternatives and their environmental consequences. Implementation of this decision entails the issuance of the ITP, including all terms and conditions governing the permit. Implementation of this decision requires adherence to all of the minimization and mitigation measures specified in the RHCP, as well as monitoring and adaptive management measures.

Rationale for Decision

We intend to select the preferred alternative (Alternative B) for implementation based on multiple environmental and social factors, including potential impacts and benefits to covered species and their habitat, the extent and effectiveness of minimization and mitigation measures, and social and economic considerations.

In order for us to be able to issue an ITP, we must ascertain that the RHCP meets the criteria set forth in 16 U.S.C. 1539(a)(2)(A) and (B). We have made that determination. These criteria, and how the RHCP satisfies these criteria, are summarized below:

1. The taking will be incidental. We find that the take will be incidental to otherwise lawful activities, including the proposed construction, use, or maintenance of public or private land Start Printed Page 28062development projects; construction, maintenance, or improvement of transportation infrastructure; installation or maintenance of utility infrastructure; construction, use, or maintenance of institutional projects or public infrastructure; and management activities. The take of individuals of covered species will be primarily due to habitat destruction and/or alteration.

2. The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such takings. The County has committed to a wide variety of conservation measures, land acquisition, management activities, monitoring, adaptive management, and other strategies designed to avoid and minimize harm to the covered species and mitigate for any unavoidable loss. Impacts to the covered species will be minimized and mitigated as described in the environmentally preferable alternative section above.

3. The applicant will develop an HCP and ensure that adequate funding for the HCP will be provided. The County has developed the RHCP and committed to fully funding all of the obligations necessary for its implementation. These obligations include the cost for purchase and management of golden-cheeked warbler and black-capped vireo, mitigation lands in perpetuity, enforcement of conservation easements, and monitoring of species populations and habitat. In addition, the County has committed to implement adaptive management measures that: identify areas of uncertainty and questions that need to be addressed to resolve such uncertainty; developed alternative management strategies and determine which experimental strategies to implement; integrate a monitoring program that is able to acquire the necessary information for effective strategy evaluation; and incorporate feedback loops that link implementation and monitoring to the decision-making process that result in appropriate changes in management. To accomplish RHCP implementation, the County estimated that costs could total up to $182.6 million. The County will fund the actual costs of implementing the RHCP by application and mitigation fees, the County General maintenance and operations fund contributions, and the County Conservation Investments.

The Service's No Surprises Assurances are discussed in the RHCP, and measures to address changed and unforeseen circumstances have been identified. Adaptive management in the form of conservation, mitigation, or management measures and monitoring will be implemented to address changed circumstances over the life of the permit that were able to be anticipated at the time of RHCP development. Unforeseen circumstances would be addressed through the Service's close coordination with the County in the implementation of the RHCP. The County has committed to a coordination process to address such circumstances.

We have, therefore, determined that the County's financial commitment and plan, along with the County's willingness to address changed and unforeseen circumstances in a cooperative fashion, is sufficient to meet this criterion.

4. The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. As the Federal action agency considering whether to issue an ITP to the County, we have reviewed the issuance of the ITP under section 7 of the ESA. Our biological opinion concluded that issuance of the ITP will not jeopardize the continued existence of the golden cheeked warbler and black capped vireo in the wild. No critical habitat has been designated for either of the covered species, and thus none will be affected.

5. The applicant agrees to implement other measures that the Service requires as being necessary or appropriate for the purposes of the HCP. We have cooperated with the County in the development of the RHCP. We commented on draft documents, participated in advisory group meetings, and worked closely with the County in every step of plan and document preparation, so that conservation of the covered species would be assured and recovery would not be jeopardized. The RHCP incorporates our recommendations for minimization and mitigation of impacts, as well as steps to monitor the effects of the RHCP and ensure success. Annual monitoring, as well as coordination and reporting mechanisms, have been designed to ensure that changes in conservation measures can be implemented if measures prove ineffective or impacts exceed estimates. It is our position that no additional measures are required to implement the intent and purpose of the RHCP to those detailed in the RHCP and its associated ITP.

We have determined that the preferred alternative best balances the protection and management of suitable habitat for covered species, while allowing and providing a streamlined process for ESA compliance for continued development in Hays County. Considerations used in this decision include: (1) Mitigation will benefit the golden cheeked warbler and black capped vireo, mitigation lands will be managed for the species in perpetuity, and other conservation measures will protect and enhance habitat; (2) mitigation measures for the covered species will fully offset anticipated impacts of development to the species and provide recovery opportunities; and (3) the RHCP is consistent with the golden cheeked warbler and black capped vireo recovery plans.

Section 9 of the Act and its implementing regulations prohibit the “taking” of threatened or endangered species. However, under limited circumstances, we may issue permits to take listed wildlife species incidental to, and not the purpose of, otherwise lawful activities.

Reviewing Documents and Submitting Comments

Please refer to TE-220793-0 when requesting documents or submitting comments. You may obtain copies of the final EIS and final RHCP by going to the Hays County Regional Habitat Conservation Plan Web site at http://hayscountyhcp.com/​documents. Alternatively, you may obtain compact disks with electronic copies of these documents, as well as the draft ROD, by writing to Mr. Adam Zerrenner, Field Supervisor, 10711 Burnet Road, Suite 200, Austin, TX 78758; telephone 512-490-0057; facsimile 512-490-0974. The application, final RHCP, final EIS, and draft ROD will also be available for public inspection, by appointment, during normal business hours (8 a.m. to 4:30 p.m.) at the Austin office. During the public comment period (see DATES), submit your written comments or data to the Field Supervisor at the Austin address.

Public comments submitted are available for public review at the Austin address listed above. This generally means that any personal information you provide us will be available to anyone reviewing the public comments (see the Public Availability of Comments section below for more information).

A limited number of printed copies of the final EIS and final RHCP are also available for public inspection and review at the following locations (by appointment only at government offices):

  • Department of the Interior, Natural Resources Library, 1849 C. St., NW., Washington, DC 20240;
  • U.S. Fish and Wildlife Service, 500 Gold Avenue, SW., Room 4012, Albuquerque, NM 87102;
  • San Marcos Public Library, 625 E. Hopkins Street, San Marcos, TX, 78666-6313;Start Printed Page 28063
  • Hays County Precinct 3 Office, 14306 Ranch Rd 12, Wimberley, TX; 78676, and
  • Hays County Precinct 4 Office, 101 Old Fitzhugh Rd, Dripping Springs, TX, 78620.

Persons wishing to review the application or draft ROD may obtain a copy by writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. Box 1306, Room 4012, Albuquerque, NM 87103.

Public Availability of Comments

Written comments we receive become part of the public record associated with this action. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that the entire comment—including your personal identifying information—may be made publicly available at any time. While 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.

Authority

We provide this notice under section 10(c) of the Act (16 U.S.C. 1531 et seq.) and its implementing regulations (50 CFR 17.22) and NEPA (42 U.S.C. 4371 et seq.) and its implementing regulations (40 CFR 1506.6).

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December 7, 2010.

Joy E. Nicholopoulos,

Acting Regional Director, Region 2, Albuquerque, New Mexico.

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[FR Doc. 2011-11761 Filed 5-12-11; 8:45 am]

BILLING CODE 4310-55-P