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Endangered and Threatened Wildlife and Plants; Draft Habitat Conservation Plan and Environmental Assessment for Construction and Operations at Kauai Lagoons Resort and Golf Course on Kauai, HI

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Fish and Wildlife Service, Interior.


Notice of availability; receipt of permit application.


We, the U.S. Fish and Wildlife Service (Service), have received an application from Kauai Lagoons LLC (KL) (applicant) for an incidental take permit (ITP) under the Endangered Species Act of 1973, as amended (ESA). The applicant is requesting a 30-year ITP to authorize take of eight bird species—six endangered, one threatened, and one candidate for listing. The ITP application includes a draft habitat conservation plan (HCP) that describes the actions and measures the applicant will implement to minimize, mitigate, and monitor incidental take of the covered species. The ITP application also includes a draft implementing agreement (IA). The Service also announces the availability of a draft Environmental Assessment (EA) that has been prepared in response to the permit application in accordance with the requirements of the National Environmental Policy Act (NEPA). The Service is making the permit application materials and draft EA available for public review and comment.


All comments from interested parties must be received on or before August 26, 2011.


Please address written comments to Loyal Mehrhoff, Project Leader, Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Room 3-122, Honolulu, HI 96850. You may also send comments by facsimile to (808) 792-9581.

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Michelle Bogardus, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service (see ADDRESSES above); telephone (808) 792-9400.

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The applicant is requesting a 30-year ITP to authorize take of six bird species that are federally listed as endangered: the Hawaiian goose (Branta sandvicensis), Hawaiian moorhen (Gallinula chloropus sandvicensis), Hawaiian coot (Fulica alai), Hawaiian duck (Anas wyvilliana), Hawaiian stilt (Himantopus mexicanus knudseni), and the Hawaiian petrel (Pterodroma sandwichensis). The requested ITP would also cover Newell's shearwater (Puffinus auricularis newelli), which is federally listed as threatened, and the band-rumped storm petrel (Oceanodroma castro), a candidate for listing under the ESA.

KL is also applying for an incidental take license (ITL) from the Hawaii Department of Land and Natural Resources (DLNR) to comply with State endangered species laws.

Availability of Documents

You may request copies of the draft HCP, IA, and EA by contacting the Service's Pacific Islands Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT above). These documents are also available electronically for review on the Service's Pacific Islands Fish and Wildlife Office Web site at​pacificislands. Comments the Service receives, as well as supporting documentation used in preparing the final NEPA document, will become part of the public record and will be available for public inspection by appointment during regular business hours. 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 information—may be made publicly available at any time. While you can ask in your comment to withhold your personal identifying information from public review, this cannot be guaranteed.

The Service specifically requests information from the public on whether the application meets the statutory and regulatory requirements for issuing a permit, and identification of any aspects of the human environment that should be analyzed in the EA. The Service is soliciting information regarding the adequacy of the HCP to minimize, mitigate, and monitor the proposed incidental take of the covered species and to provide for adaptive management, as evaluated against our permit issuance criteria found in section 10(a) of the ESA, 16 U.S.C. 1539(a), and 50 CFR 13.21, 17.22, and 17.32. In Start Printed Page 40928compliance with section 10(c) of the ESA (16 U.S.C. 1539(c)), the Service is making the permit application materials available for public review and comment for 45 days (see DATES section above).


Section 9 of the ESA (16 U.S.C. 1538) and Federal regulations prohibit the take of fish and wildlife species listed as endangered or threatened. The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (16 U.S.C. 1532 (19)). However, under section 10(a) of the ESA (16 U.S.C. 1539(a)), the Service may issue permits to authorize incidental take of federally listed fish and wildlife species. Incidental take is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found at 50 CFR 17.32 and 17.22. If issued, the permittee would receive assurances under the Service's “No Surprises” regulations at 50 CFR 17.32(b)(5) and 50 CFR 17.22(b)(5).

KL owns and operates Kauai Lagoons Resort on the island of Kauai. The resort was built in the 1980s, encompasses approximately 600 acres, and was originally developed with two 18-hole championship golf courses, a golf and racquet club facility, a network of man-made navigable lagoons, a restaurant, commercial development, and associated parking areas. KL is developing additional facilities at the resort to include construction of 707 condominium units, 65 single family residential lots, a central operations building, a new golf clubhouse, other additional infrastructure, and conversion of the two existing 18-hole golf courses into a 27-hole golf course. New construction will result in additional artificial lights within the KL property. A portion of these construction activities have already been completed. New construction activities will occur on approximately 230 acres of the 600-acre KL property.

Despite its artificial nature, the KL resort's water features, as well as grounds maintenance and continued predator management, have attracted the Hawaiian goose, Hawaiian moorhen, Hawaiian duck, Hawaiian stilt, and Hawaiian coot to the KL property. These five waterbird species are known to nest on the KL property. Currently, the nesting Hawaiian goose population at the KL resort property is one of the largest and most productive in the State. The Hawaiian goose and the other waterbirds are at risk of injury and mortality due to golfing activities (collisions with golf carts and golf balls) and course operations, and the future construction activities at KL. Hawaiian geese and Hawaiian coots have been documented to be hurt or killed from golf course operations. Construction activities, such as site clearing, mass grading, or building construction, also pose a threat to the Hawaiian goose and the other waterbirds.

The KL property is adjacent to Lihue International Airport on the island of Kauai. Hawaiian geese have been onsite residents of KL since the late 1990s. In the ensuing 10 years since the geese became established, the nesting activity on the property has increased from 5 nests in 1999 to 66 nests in 2009, predominantly due to predator management and the presence of created water features. The close proximity of nesting and roosting Hawaiian geese and waterbirds to the Lihue International Airport poses a threat to human safety because of the risk of bird strikes to aircraft. In order to address the potential safety issue, the Service and Hawaii's Division of Forestry and Wildlife (DOFAW) have participated in a multi-agency effort to safely translocate some Hawaiian geese to other suitable locations on Kauai. Further efforts to reduce the population growth of Hawaiian geese in the vicinity of the Airport are ongoing, and the Service is working with FAA to address airport maintenance and operations pursuant to section 7 of the ESA. On April 14, 2011, Hawaii Governor Neil Abercrombie signed a Proclamation requiring the translocation of Hawaiian geese from KL over the next five years. The Proclamation suspends State laws as necessary to expedite DOFAW's effort to move birds to suitable locations on other islands.

The Hawaiian petrel, Newell's shearwater, and the band-rumped storm petrel are seabird species that spend a large part of the year at sea, forage in the open ocean, and breed on Kauai. Beginning in March and April, adults initiate breeding at colonial nesting grounds in the interior mountains of Kauai. Fledglings (i.e., young birds learning how to fly) travel from the nesting colony to the sea in the fall (mid-September to mid-December). They are known to be attracted to artificially lighted areas, which can result in disorientation and subsequent fallout (ceasing to be able to fly and involuntarily descending) due to exhaustion. Adult seabirds can collide with towers, power lines, and other tall structures while flying at night between their nesting colonies and at-sea foraging areas. To date, one Newell's shearwater has been found on KL property.

Proposed Plan

The draft HCP describes the impacts of take associated with KL's activities, and includes measures to minimize, mitigate, and monitor the impacts of incidental take on each of the covered species. KL is proposing the following mitigation measures: (1) On-site cooperation with plans to translocate Hawaiian geese to reduce the risk of bird strikes by aircraft; (2) funding for the development of a plan to address translocation of geese off of KL; and (3) continuation of ongoing monitoring efforts and predator control. To reduce the potential of collisions between airplanes and birds, KL will not purposely enhance the suitability of the resort as a breeding habitat for the Hawaiian goose. For unavoidable take of listed seabirds, KL proposes to pay into the Kauai Seabird Habitat Conservation Plan (currently being developed by DOFAW) so that funds can be used to assist in the enhancement of known seabird colonies through predator management, habitat restoration and monitoring. The HCP also includes numerous avoidance and minimization measures that will significantly limit the take of the covered species due to resort operations and construction.

The draft EA contains an analysis of two alternatives: (1) Proposed Action (issuance of a permit to KL on the basis of the activities described in the proposed HCP); and (2) No Action (no permit issuance and no measures by the applicant to reduce or eliminate the take of covered species). The draft EA considers the direct, indirect, and cumulative effects of the alternatives, including any measures under the Proposed Action alternative intended to minimize and mitigate such impacts. The draft EA also identifies additional alternatives that were considered but not fully analyzed, as they did not meet the purpose and need of the Proposed Action.

The Service invites comments and suggestions from all interested parties on the draft documents associated with the permit application, and requests that comments be as specific as possible. In particular, information and comments regarding the following topics are requested: (1) Whether the proposed HCP sufficiently minimizes and mitigates the impacts of take to the covered species to the maximum extent practicable over its 30-year term; (2) additional adaptive management or monitoring provisions that may be incorporated into the Proposed Action Start Printed Page 40929alternative, and their benefits to listed species; (3) the direct, indirect, or cumulative effects that implementation of either alternative could have on the human environment; (4) other plans or projects that might be relevant to this action; and (5) any other information pertinent to evaluating the effects of the proposed action on the human environment.


This notice is provided pursuant to section 10(c) (16 U.S.C. 1539(c)) of the ESA and NEPA regulations (40 CFR 1506.6). The public process for the proposed Federal permit action will be completed after the public comment period, at which time we will evaluate the permit application, the HCP and associated documents (including the EA), and comments submitted thereon to determine whether or not the proposed action meets the requirements of section 10(a) (16 U.S.C. 1539(a)) of the ESA and has been adequately evaluated under NEPA.

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Dated: June 23, 2011.

Richard Hannan,

Deputy Regional Director, Region 1, Portland, Oregon.

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[FR Doc. 2011-17452 Filed 7-11-11; 8:45 am]