2023-00902. Endangered Species; File No: 26645

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of a permit.

SUMMARY:

Notice is hereby given that NMFS has issued an Incidental Take Permit (ITP) (No. 26645) to the Arnold Irrigation District, Central Oregon Irrigation District, Lone Pine Irrigation District, North Unit Irrigation District, Ochoco Irrigation District, Swalley Irrigation District, Three Sisters Irrigation District, Tumalo Irrigation District, and the City of Prineville (hereafter applicants), pursuant to the Endangered Species Act (ESA) of 1973, as amended, for the incidental take of Middle Columbia River (MCR) steelhead ( Oncorhynchus mykiss), listed threatened under the ESA, and the nonessential experimental population of steelhead (NEP) occurring upstream of the Round Butte Dam and Deschutes River sockeye salmon ( Oncorhynchus nerka) which are not currently listed under the ESA (hereafter, covered species). Incidental take is associated with the otherwise lawful water management activitiesincluding the storage, release, diversion, and return of irrigation water by the eight irrigation districts and groundwater withdrawals, effluent discharges, and surface water diversions by the City of Prineville. The permit is issued for a duration of 28 years.

ADDRESSES:

The record of decision, findings, biological opinion and other related documents are available on the NMFS West Coast Region website at https://www.fisheries.noaa.gov/​west-coast/​habitat-conservation/​habitat-conservation-plans-west-coast. The draft and final environmental impact statement and public comments are available on the U.S. Fish and Wildlife Service website at https://www.fws.gov/​library/​collections/​deschutes-hcp.

FOR FURTHER INFORMATION CONTACT:

Scott Carlon (phone: [phone] or email: [e-mail]. or Celeste Stout (phone: [phone] or email: [e-mail]).

SUPPLEMENTARY INFORMATION:

Background

On August 30, 2019, NMFS received an application for an ESA section 10(a)(1)(B) incidental take permit for activities pertaining to irrigation and municipal water management in the Deschutes River basin, Oregon. Included with the application was the draft Deschutes Basin Habitat Conservation Plan (HCP) collectively developed by eight irrigation districts (Arnold, Central Oregon, Lone Pine, North Unit, Ochoco, Swalley, Three Sisters, and Tumalo Irrigation Districts) and the City of Prineville. Activities covered under the HCP would occur in Klamath, Deschutes, Jefferson, Crook, Wasco, and Sherman Counties, Oregon. The applicants also applied with the U.S. Fish and Wildlife Service (USFWS) for incidental take of bull trout ( Salvelinus confluentus) and Oregon spotted frog ( Rana pretiosa).

Issuing an ESA section 10(a)(1)(B) permit constitutes a Federal action requiring compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) as implemented by 40 CFR parts 1500-1508 and NOAA Administrative Order 216-6A, Compliance with the NEPA (2016). For this action, USFWS is the lead agency under NEPA and NMFS is a cooperating agency. As the lead agency, the USFWS published a notice of availability (NOA) of a draft environmental impact statement (EIS) in the Federal Register on October 4, 2019 (84 FR 53164), and published a NOA of the Final EIS with the USFWS on November 6, 2020 (85 FR 71086). USFWS received numerous comments on the Draft EIS, which were considered by both USFWS and NMFS. These comments were addressed as changes to the Final EIS. All alternatives were described in detail, evaluated, and analyzed in the Draft and Final EIS. NMFS found that issuing the ITP would have a significant impact on the quality of the environment and adopted the USFWS' EIS through its own NEPA process (40 CFR 1506.3). NMFS determined that the EIS considered a range of reasonable alternatives and fully evaluated the direct, indirect, and cumulative impacts likely to result from the authorization of ITPs issued by both the NMFS and the US Fish and Wildlife Service for this HCP.

All eight irrigation districts are quasi-municipal corporations formed and operated according to Oregon State law to distribute water to irrigators (patrons) within designated geographic boundaries and in accordance with the individual water rights held by those patrons. The City of Prineville operates City-owned infrastructure and provides essential services—including public safety, municipal water supply, and sewage treatment—for more than 9,000 residents. The applicants determined that continued operation of irrigation and essential services requires incidental take permits to address unavoidable take of the covered species.

Conservation Plan

Section 10 of the ESA requires an applicant to submit an adequate conservation plan. The applicants proposed a conservation program to avoid, minimize, and mitigate the impacts of taking MCR steelhead, the NEP of steelhead, and sockeye salmon (covered species). The activities covered by the HCP cause changes in surface water hydrology that alter the quantity and quality of aquatic habitats for listed species. The covered activities modify the timing and magnitude of flow in the Deschutes River and a number of its tributaries through the storage, release, diversion, and return of irrigation water. In most cases, the hydrologic changes resulting from irrigation activities have adverse impacts on aquatic habitats for the covered species. When flows are reduced, the total area of usable habitat for aquatic species generally decreases and water temperatures typically increase to the extent that habitat quality is negatively impacted. These adverse effects on listed species can result in direct harm or injury of individuals of the covered species, and through changes in habitat that interfere with the essential life activities of the species. Both types of effects are addressed in the HCP conservation measures.

The HCP addresses the adverse effects of the covered activities on the covered species by reducing or eliminating those effects to the maximum extent practicable, and by mitigating effects that cannot be eliminated altogether. To address the adverse effects, the HCP's conservation measures modify irrigation activities that reduce instream flow. As a result, with implementation of the HCP, flows in the affected reaches will be higher than they were historically (over the last 50+ years) in the winter, and the duration of high summer water temperatures will be reduced.

The conservation strategy consists of a series of conservation measures to reduce and mitigate ( i.e., offset) the adverse effects of covered activities that can result in the take of the covered species. Proposed conservation measures include actions that would change the timing and volume of water released from covered reservoirs and streamflow in covered rivers and creeks by (1) establishing a minimum instream flow in the Deschutes River below Crane Prairie Dam; (2) increasing fall and winter Deschutes River flows based on a schedule of flow increases, thus improving rearing and migratory habitat for covered species in the middle and lower Deschutes River; (3) limiting irrigation season flows (summer flow cap) in years 8 through 28 of the ITP; (4) supplementing releases of uncontracted storage from Prineville Reservoir on the Crooked River; (5) providing conservation funds for the Crooked River, Whychus Creek, and Upper Deschutes River; and (6) providing other conservation measures to modify operation and maintenance of water facilities to enhance flows on the Deschutes River, Crescent Creek, Little Deschutes River, Whychus Creek, Crooked River, Ochoco Creek, and McKay Creek. The conservation strategy also provides an adaptive management and monitoring program to ensure that it is achieving the intended benefits to the covered species.

Criteria for Issuing Permit 26645

Issuance criteria for this permit are described in ESA section 10(a)(2)(B) and its implementing regulations (50 CFR 222.307(c)(2)). According to the ESA, NMFS shall issue the requested incidental take permit, if NMFS finds that the following criteria are met:

(i) The taking will be incidental;

(ii) The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking;

(iii) The applicant will ensure that adequate funding for the plan will be provided;

(iv) The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and

(v) The measures, if any, required under subparagraph (A)(iv) will be met, and NMFS has received such other assurances as it may require that the plan will be implemented.

NMFS found that the applicants met the criteria for the issuance of an incidental take permit, and as such, NMFS issued the incidental take permit to the applicants for the incidental take of the covered species.

Authority

Section 9 of the ESA and Federal regulations prohibits the “taking” of a species listed as endangered or threatened. The ESA defines “take” to mean harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. NMFS may issue permits, under limited circumstances to take listed species when take is incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA provides for authorizing incidental take of listed species by non-Federal entities. The regulations for issuing incidental take permits for threatened and endangered species are promulgated at 50 CFR 222.307.

Dated: January 12, 2023.

Angela Somma,

Chief, Endangered Species Division, Office of Protected Resources, National Marine Fisheries Service.