02-14397. Nye County Habitat Conservation Plan for Lands Conveyed at Lathrop Wells, NV

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of availability

SUMMARY:

Nye County, Nevada (Applicant) has applied to the Fish and Wildlife Service (Service) for an Incidental Take Permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The proposed permit would authorize take of the federally threatened desert tortoise (Gopherus agassizii) incidental to otherwise lawful activities associated with the development of 100 acres (project site) near the community of Lathrop Wells, Nye County, Nevada.

We request comments from the public on the permit application, which is available for review. The application includes a Low-Effect Habitat Conservation Plan (HCP), that fully describes the proposed project and the measures that the Applicant would undertake to minimize and mitigate anticipated take of the desert tortoise, as required in Section 10(a)(2)(B) of the Act.

We also request comments on our preliminary determination that the HCP qualifies as a “low-effect” plan, eligible for a categorical exclusion under the National Environmental Policy Act. The basis for this determination is discussed in an Environmental Action Statement, which is also available for public review.

DATES:

Written comments must be received no later than July 10, 2002.

ADDRESSES:

Written comments should be addressed to Cynthia Martinez, Assistant Field Supervisor, Southern Nevada Field Office, 4701 North Torrey Pines Drive, Las Vegas, Nevada 89130. Comments may also be sent by facsimile to [phone].

FOR FURTHER INFORMATION CONTACT:

Michael Burroughs, Wildlife Biologist, at the address above, or by calling [phone].

SUPPLEMENTARY INFORMATION:

Document Availability

Please contact the above office if you would like copies of the application, Habitat Conservation Plan (HCP), and Environmental Action Statement. Documents also will be available for review by appointment, during normal business hours at the above address.

Background

Section 9 of the Act and Federal regulation prohibit the “take” of fish or wildlife species listed as endangered or threatened, respectively. Take of listed fish or wildlife is defined under the Act to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” However, the Service, under limited circumstances, may issue permits to authorize incidental take; i.e., take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found at 50 CFR 17.32 and 17.22, respectively. Among other criteria, issuance of such permits must not jeopardize the existence of federally listed fish, wildlife, or plants.

The Applicant proposes to construct the Nevada Space Museum and associated facilities, the Science and Technology Center, and other commercial uses, on a total of 100 acres of land. In total, 823.22 acres of land would be transferred from the Bureau of Land Management to Nye County pursuant to Public Laws 106-113 and 106-248, as amended, and the Recreation and Public Purposes Act of 1926, of which a total of 100 acres would be permanently removed with the remaining acres to be managed for natural resource values and desert tortoise habitat. The project site is immediately north of the intersection of U.S. Highway 95 and Nevada State Route 373 in southern Nye County, Nevada. The land to be conveyed is irregular in shape with the southern boundary delineated by the centerline of U.S. Highway 95 and existing private development. The western boundary is coincident with the western boundary of T. 15 S., R. 49 E., Section 13 and property lines of private parcels, and the eastern boundary is coincident with the eastern boundary of T. 15 S., R. 50 E., Section 18. The northern boundary is coincident with the northern boundary of Section 13, the northern boundary of the western half of Section 18, and the east-west centerline through the eastern half of Section 18. The project site is currently undeveloped, however, existing and ongoing disturbances dominate the site. Prevalent vegetation on the conveyed lands is creosote bush (Larrea tridentata) and white bursage (Ambrosia dumosa).

In 2000, biologists conducted surveys for desert tortoise on the conveyed lands and determined that the area consisted of poor desert tortoise habitat. No desert tortoises were observed during the survey, however one old desert tortoise burrow and a single scat were found. Based on these surveys, the Service concluded that the development of the project site would not result in direct take of the desert tortoise.

The Applicant proposes to implement measures to minimize and mitigate for the removal of suitable desert tortoise habitat from the 100-acre project site and impacts to desert tortoise that may occur in the area. Specifically, they propose to (1) implement desert tortoise awareness and education programs, including signs on the project site; (2) provide funding to purchase materials to revegetate off-site desert tortoise habitat; and (3) undertake various measures during and after development activities at the project site to minimize potential impacts to desert tortoise and its habitat.

The Service's Proposed Action consists of the issuance of an incidental take permit and implementation of the HCP, which includes measures to minimize and mitigate impacts of the project on the desert tortoise. Two alternatives to the taking of desert tortoise under the Proposed Action are considered in the HCP. Under the No-Action alternative the project site would not be developed and the HCP would not be implemented. Without the HCP, the desert tortoise would not benefit from mitigation measures in the Proposed Action. Non-native plants would continue to invade the project site where disturbance currently exists, human disturbances of the area would likely continue, and no contribution to the preservation and management of high quality, off-site desert tortoise habitat would occur. The No-Action alternative would also economically impact Nye County.

Under the Alternate Site Selection alternative, a different site would be used for commercial and community development. This alternative is considered infeasible because (1) the lands to be conveyed to Nye County have been identified through Public Law 106-113, as amended; (2) most other lands outside the conveyance area have not been identified by the Bureau of Land Management (BLM) for disposal; and (3) lands outside the conveyance area that have been identified for disposal by the BLM have equal or better quality desert tortoise habitat that would be impacted. Implementation of the Alternate Site Selection alternative would result in similar impacts as the proposed project site, and would not substantially benefit the desert tortoise.

The Service has made a preliminary determination that the HCP qualifies as a “low-effect” plan as defined by the Habitat Conservation Planning Handbook (November 1996). Our determination that a habitat conservation plan qualifies as a low-effect plan is based on the following three criteria: (1) Implementation of the plan would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the plan would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the plan, considered together with the impacts of other past, present and reasonably foreseeable similarly situated projects would not result, over time, in cumulative effects to environmental values or resources which would be considered significant. As more fully explained in our Environmental Action Statement, the Applicant's proposal to construct the museum and technology center qualifies as a “low-effect” plan for the following reasons:

1. Approval of the HCP would result in minor or negligible effects on the desert tortoise and its habitat. The Service does not anticipate significant direct or cumulative effects to the desert tortoise resulting from development of the project site.

2. Approval of the HCP would not have adverse effects on unique geographic, historic or cultural sites, or involve unique or unknown environmental risks.

3. Approval of the HCP would not result in any cumulative or growth inducing impacts and, therefore, would not result in significant adverse effects on public health or safety.

4. The project does not require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or the Fish and Wildlife Coordination Act, nor does it threaten to violate any Federal, State, local or tribal laws.

5. Approval of the HCP would not establish a precedent for future actions or represent a decision in principle about future actions with potentially significant environmental effects.

The Service therefore has made a preliminary determination that approval of the HCP qualifies as a categorical exclusion under the National Environmental Policy Act, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). Based upon this preliminary determination, we do not intend to prepare further National Environmental Policy Act documentation. The Service will consider public comments in making its final determination on whether to prepare such additional documentation.

The Service provides this notice pursuant to section 10(c) of the Endangered Species Act. We will evaluate the permit application, the HCP, and comments submitted thereon to determine whether the application meets the requirements of section 10 (a) of the Act. If the requirements are met, the Service will issue a permit to Nye County. We will make the final permit decision no sooner than 30 days from the date of this notice.

Dated: May 31, 2002.

D. Kenneth McDermond,

Deputy Manager, California/Nevada Operations Office, Sacramento, California.