2011-17419. Draft Environmental Impact Statement and Multi-Species Habitat Conservation Plan; Receipt of Application for Incidental Take Permit; NiSource, Inc.

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of availability.

SUMMARY:

We, the U.S. Fish and Wildlife Service, have received an application from NiSource, Inc. (Applicant), for an incidental take permit under the Endangered Species Act of 1973 (ESA). If approved, the permit would be for a 50-year period and would authorize incidental take of 10 species, 9 of which are federally listed and 1 of which is proposed.

The applicant has prepared a multispecies habitat conservation plan (MSHCP) to cover a suite of activities associated with operation of a natural gas pipeline system; the MSHCP also analyzes 33 additional species and provides for measures to avoid take of those species. The Applicant has requested concurrence with their determination that activities will not take these 33 species if implemented in accordance with their MSHCP. We request public comment on the application and associated documents.

DATES:

To ensure consideration, please send your written comments on or before October 11, 2011.

ADDRESSES:

Send written comments via U.S. mail to the Regional Director, Midwest Region, Attn: Lisa Mandell, U.S. Fish and Wildlife Service, Ecological Services, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437-1458, or by electronic mail to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Lisa Mandell, [phone].

SUPPLEMENTARY INFORMATION:

We have received an application from NiSource, Inc., for an incidental take permit (ITP) (TE02636A) under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.; ESA). If approved, the permit would be for a 50-year period and would authorize incidental take of the following 10 species:

Species	Current listing status
Indiana bat (Myotis sodalis)	Endangered.
Bog Turtle (Glyptemys muhlenbergii)	Threatened.
Madison cave isopod (Antrolana lira)	Threatened.
Nashville crayfish (Orconectes shoupi)	Endangered.
Clubshell (Pleurobema clava)	Endangered.
Fanshell (Cyprogenia stegaria)	Endangered.
James spinymussel (Pleurobema collina)	Endangered.
Northern riffleshell (Epioblasma torulosa rangiana)	Endangered.
Sheepnose (Plethobasus cyphyus)	Proposed for listing.
American burying beetle (Nicrophorus americanus)	Endangered.

The Applicant has prepared an MSHCP to cover a suite of activities associated with operation of a natural gas pipeline system in the States of Delaware, Indiana, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia.

The MSHCP also analyzes 33 additional species and provides for measures to avoid take of those species. The Applicant has requested concurrence with their determination that activities will not take these 33 species if implemented in accordance with their MSHCP:

Species	Current listing status
Delmarva Peninsula fox squirrel (Sciurus niger cinereus)	Endangered.
Gray bat (Myotis grisescens)	Endangered.
Louisiana black bear (Ursus americanus luteolus)	Threatened.
Virginia big-eared bat (Plecotus townsendii virginianus)	Endangered.
West Indian manatee (Trichechus manatus)	Endangered.
Interior least tern (Sterna antillarum)	Endangered.
Lake Erie water snake (Nerodia spiedon insularum)	Threatened.
Shenandoah salamander (Plethodon Shenandoah)	Threatened.
Cheat Mountain salamander (Plethodon nettingi)	Threatened.
Blackside dace (Phoximus cumberlandensis)	Threatened.
Cumberland snubnose darter (Etheostoma susanae)	Candidate.
Gulf sturgeon (Acipenser oxyrinchus desotoi)	Threatened.
Maryland darter (Etheostoma sellare)	Endangered.
Scioto madtom (Noturus trautmani)	Endangered.
Slackwater darter (Etheostoma boschungi)	Threatened.
Birdwing pearlymussel (Lemiox rimosus)	Endangered.
Cracking pearlymussel (Hemistena lata)	Endangered.
Cumberland bean pearlymussel (Villosa trabalis)	Endangered.
Cumberland monkeyface pearlymussel (Quadrula rafinesque)	Endangered.
Dromedary pearlymussel (Dromus dromas)	Endangered.
Louisiana pearlshell (Margaritifera hembeli)	Endangered.
Oyster mussel (Epioblasma capsaeformis)	Endangered.
Pale Lilliput pearlymussel (Toxolasma cylindrellus)	Endangered.
Purple cat's paw pearlymussel	Endangered.
(Epioblasma obliquata)	Endangered.
Tan riffleshell (Epioblasma florentina walkeri)	Endangered.
White cat's paw pearlymussel (Epioblasma obliquata perobliqua)	Endangered.
White wartyback pearlymussel (Plethobasus cicatriocosus)	Endangered.
Karner blue butterfly (Lycaeides melissa samuelis)	Endangered.
Mitchell's satyr butterfly (Neonympha mitchellii mitchellii)	Endangered.
Puritan tiger beetle (Cicindela puritana)	Threatened.
Braun's rock cress (Arabis perstellata)	Endangered.
Pitcher's (sand dune) thistle (Cirsium pitcheri)	Threatened.
Mead's milkweed (Asclepias meadii)	Threatened.

Under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and the Endangered Species Act (ESA; 16 U.S.C. 1531 et seq.), we announce that we have gathered the information necessary to:

(1) Determine the impacts and formulate alternatives for an environmental impact statement related to:

(a) Issuance of an incidental take permit to the Applicant for the take of nine federally listed species and one species that is proposed for listing and

(b) Implementation of the associated MSHCP, which includes the evaluation of 33 other listed species that may occur in the MSHCP covered lands; and

(2) Evaluate the application for permit issuance, including the MSHCP, which provides measures to minimize and mitigate the effects of the proposed incidental take of the 10 species and to avoid take of the remaining 33 species included in the MSHCP.

Background

NiSource Inc., headquartered in Merrillville, Indiana, is engaged in natural gas transmission, storage, and distribution, as well as electric generation, transmission, and distribution. NiSource Inc.'s wholly owned pipeline subsidiaries, Columbia Gas Transmission, LLC; Columbia Gulf Transmission Company; Crossroads Pipeline Company; Central Kentucky Transmission Company; and NiSource Gas Transmission and Storage Company (companies referred to collectively as “NiSource” throughout the MSHCP), are interstate natural gas companies whose primary operations are subject to the Natural Gas Act (15 U.S.C. 717) and fall under the jurisdiction of the Federal Energy Regulatory Commission (FERC) and the U.S. Department of Transportation (USDOT). NiSource is seeking coverage under an Incidental Take Permit under section 10(a)(1)(B) of the ESA to take species in the course of engaging in gas transmission and storage operations activities (“activities”).

NiSource contacted the U.S. Fish and Wildlife Service (Service) in late 2005 to discuss options under which it could receive authorization under the ESA to take federally listed species incidental to engaging in certain natural gas transmission activities. Operation and maintenance of NiSource's facilities requires numerous activities conducted on an annual basis. On average, NiSource has approximately 400 projects annually that require some form of review pursuant to the ESA, typically under Section 7 of the ESA. Most of these consultations have resulted in a determination that projects either would not affect or would not likely adversely affect listed species or critical habitat. The majority of these projects have been addressed through informal consultations with the Service Field Offices. These activities include routing right-of-way (ROW) maintenance; facility inspection, upgrade, and replacement; forced relocations; and expansion projects.

Specifically, NiSource wanted to explore options for ESA compliance because it believes that its numerous individual project-focused ESA Section 7 consultations are inefficient and time consuming, and that the traditional consultation approach to regulatory compliance may be too limited a tool to achieve the ESA's conservation goals. For example, when the impacts of natural gas pipeline activities on protected species are quantified for a discrete project, the conservation benefits provided to the species are similarly discrete. Further, the project-by-project approach does not provide the tools necessary to take a holistic, landscape approach to species protection.

NiSource's MSHCP analyzes impacts to the 43 species resulting from three general categories of activities related to NiSource's natural gas systems: (1) General operation and maintenance; (2) safety-related repairs, replacements, and maintenance; and (3) expansion. The covered activities addressed in the MSHCP are those activities necessary for safe and efficient operation of NiSource's pipeline system, many of which are performed pursuant to the regulations and guidance of the FERC and the U.S. Department of Transportation (USDOT), and other regulatory authorities. The geographic scope of this MSHCP will extend across the Service's Midwest, Southeast, and Northeast Regions, covering the general area stretching from Louisiana northeastward to New York where NiSource natural gas systems are in place. For purposes of this MSHCP, NiSource's natural gas pipeline system does not include any electric transmission lines that support the transmission of natural gas.

The MSHCP provides both enhanced conservation of listed species and streamlined regulatory compliance requirements for NiSource's activities, as well as a means to avoid, minimize, and/or mitigate for take of the 10 species caused by covered activities. It also documents measures to be undertaken to avoid adverse effects to the remaining 33 species for which take is not anticipated. The goals of the MSHCP's conservation strategy are to protect MSHCP species and their habitats through the implementation of an environmental compliance program (e.g., practices, standards, training, etc.) that meets or exceeds Federal, State, and local regulations and requirements; to enhance the conservation of MSHCP species through the application of rigorous planning, adaptive management, and sound scientific principles; and to support species conservation actions using a landscape approach, maximizing conservation benefits to take species and the ecosystems that support them. The MSHCP is intended to satisfy applicable provisions of the ESA pertaining to federally listed species protection, while improving the permitting efficiency for the construction, operation, and maintenance of NiSource's natural gas pipelines and ancillary facilities through a predictable and accepted structure under which its activities may proceed.

Purpose and Need for Action

In accordance with NEPA, we have prepared an Environmental Impact Statement (EIS) to analyze the impacts to the human environment that would occur if the requested permit were issued and the associated MSHCP were implemented. The EIS for this action is intended to function programmatically. Specifically, it will provide a general evaluation of impacts. Due to the broad scope of the action, however, future, site-specific evaluations of impacts will be more fully evaluated and analyzed later through the tiering process. Traditionally, tiered NEPA analyses are completed by the agency that issues the programmatic EIS and Record of Decision (ROD). Here, the Service will issue a ROD on the environmental impacts of the proposed action, i.e., issuance of the incidental take permit.

We do not anticipate that the cooperating agencies responsible for authorizing, permitting, or licensing aspects of NiSource's future activities, such as FERC, the U.S. Army Corps of Engineers (USACE), the U.S. Forest Service (USFS), and the National Park Service (NPS), will sign or adopt that ROD. Rather, pursuant to the Council on Environmental Quality's NEPA regulations, such agencies will be encouraged to “tier” off the programmatic EIS by adopting relevant portions of that document. Given the very general nature of the EIS' analysis, cooperating agencies will be required to analyze project impacts more comprehensively as part of their respective permitting processes. The level of such review will depend on the scope and impacts of the specific NiSource project under consideration.

Proposed Action

Section 9 of the Act prohibits the “taking” of threatened and endangered species. However, provided certain criteria are met, we are authorized to issue permits under section 10(a)(1)(B) of the Act for take of federally listed species, when, among other things, such a taking is incidental to, and not the purpose of, otherwise lawful activities. Under the Act, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect endangered and threatened species, or to attempt to engage in any such conduct. Our implementing regulations define “harm” as significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). Harass, as defined, means “an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering” (50 CFR 17.3).

The MSHCP analyzes, and the ITP would cover, the various manifestations of take attributable to NiSource activities. For the 10 take species, this would primarily involve harassment, harm, and killing, and, for most species, the take that would occur would include all three subcategories depending on the specific action. If issued, the ITP would authorize incidental take consistent with the Applicant's MSHCP and the permit. To issue the permit, the Service must find that NiSource's application, including its MSHCP, satisfies the criteria of section 10(a)(1)(B) of the ESA and the Service's implementing regulations at 50 CFR 13, 17.22, and 17.32.

The areas covered (“covered lands”) by the Applicant's MSHCP include much of NiSource's pipeline system. NiSource's operating territory traverses 14 States, ranging from New York to Louisiana. The covered lands overlay NiSource's onshore pipeline system in the States of Delaware, Indiana, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, and West Virginia. This pipeline system includes approximately 15,562 miles of buried steel pipe ranging in diameter from 2 to 36 inches, 117 compressor stations, and 6,236 measuring and regulating stations. In addition, NiSource operates and maintains underground natural gas storage fields in conjunction with its pipeline system. Currently, NiSource operates 36 storage fields comprised of approximately 3,600 individual storage wells in Maryland, West Virginia, Ohio, Pennsylvania, and New York. Approximately 95 percent of NiSource's annual projects will occur within its existing ROW (typically 50 feet wide, with the buried pipe(s) generally in the center) and result in little ground disturbance.

A portion of NiSource's annual activities to operate, maintain, and expand its natural gas transmission system will likely deviate from NiSource's existing ROW. Therefore, NiSource has proposed a 1-mile-wide corridor centered on NiSource's existing facilities as the best approach for defining this portion of the covered lands. This 1-mile-wide corridor encompasses all of NiSource's onshore pipeline facilities and the majority of its existing storage fields. However, 9 large storage fields that NiSource wishes to expand are located outside the corridor in 12 counties, namely Hocking, Fairfield, Ashland, Knox, and Richland Counties, Ohio; Bedford County, Pennsylvania; Allegany County, Maryland; and Kanawha, Jackson, Preston, Marshall and Wetzel Counties, West Virginia. NiSource has not identified, for the Service or the public, the locations of the storage fields in these counties, based on its determination that the information is highly sensitive (for Homeland Security purposes) and constitutes confidential business information. Therefore, the covered lands identified in the MSHCP and DEIS have been defined broadly to include, in their entirety, each of the 12 counties in which these storage fields occur.

Although a 1-mile-wide corridor and the boundaries of the 12 counties are used to delineate the covered lands and to identify the potential presence of threatened and endangered species for inclusion in this MSHCP, the MSHCP does not contemplate unlimited construction or other surface disturbance within the corridor or the counties. NiSource will not utilize, clear, or disturb the entire 1-mile-wide corridor or the storage field counties, or even a significant portion of such corridor or counties. The 1-mile-wide corridor and county boundaries were chosen to provide needed flexibility for both the realignment of existing facilities to accommodate future forced relocations (typically resulting from public road construction/maintenance projects) and the minimization of environmental impacts while aligning future replacement and expansion projects.

Because of the nature of this MSHCP, in terms of the scope of covered lands and permit duration, NiSource has not been able to predict with certainty where or when a given covered activity would occur. Thus, the species analyses rely on multiple assumptions to estimate the reasonable worst-case-scenario take for each species considered. Given the uncertainty of certain assumptions, it is possible that the modeling may underestimate the amount of take. To address this, Chapter 7 of the MSHCP provides adaptive management to assess the validity of assumptions and implement specified contingencies. On the other hand, the reasonable worst case scenarios may err on the side of overestimating impacts of the covered activities on the take species. In practice, as the MSHCP is implemented, NiSource anticipates that by utilizing avoidance and minimization measures, the actual take numbers will be much less than the amount estimated. However, obtaining the take authorization and having a process to avoid, minimize, and mitigate the impact of take that does occur will provide NiSource with the flexibility to be efficient in its operations, while providing a benefit to the take species through the MSHCP's landscape-level conservation approach and mitigation strategy.

NiSource's landscape-level mitigation goal for this MSHCP may be facilitated by the use of a green infrastructure assessment for strategic conservation planning developed for NiSource by The Conservation Fund (TCF), with input from all 14 cooperating States. Green infrastructure offers a conceptual approach for identifying mitigation opportunities at an ecosystem level. Specifically, it is a strategically planned and managed network of natural lands, working landscapes, and other open spaces that conserve ecosystem values and functions and provide associated incidental benefits to human populations. The MSHCP articulates strict criteria for the selection of future mitigation projects. The Green Infrastructure Assessment will assist NiSource in identifying the most beneficial projects to be implemented, consistent with the MSHCP's mitigation prescriptions.

NiSource and the Service sought input from the Federal agency cooperators (the Service, FERC, USACE, USFS, and NPS) on the MSHCP and the agencies' NEPA approach. The MSHCP also has a variety of components for which we seek public review and input. The Madison Cave Isopod, for example, is an elusive underground species that dwells in karst (cave) habitats. The Service has limited understanding of the effect of pipeline activities on some species, such as Madison Cave Isopod, particularly with respect to such things as the reach of surface disturbance on the karst systems. Moreover, the large scale, both geographic and temporal, of the MSHCP brings with it uncertainty and the need to make assumptions in the absence of absolute scientific data. We, therefore, seek input on calculation of the reasonable worst-case scenarios to assess the anticipated amount of take, the mitigation approach, specific criteria to be used to select future projects to compensate for the impacts of the takings, and the adequacy of the proposed funding mechanism, in addition to the adaptive management strategy and approach that NiSource will use to address changed circumstances over the life of the plan.

Alternatives in the Draft EIS

Three alternatives were fully evaluated in the environmental impact statement prepared for this action:

(1) No Action Alternative—NiSource compliance with the ESA would continue “status quo” through informal and formal Section 7 ESA consultations between cooperating agencies and the USFWS on a project-by-project basis (FERC is the lead agency that regulates NiSource activities). NiSource activities with a Federal nexus (e.g., FERC authorizations, USACE authorizations, and USFS and NPS permitting) would continue to require individual Section 7 ESA consultations to comply with the ESA. NiSource activities with no Federal nexus would continue to be constrained by the lack of any authorization to take listed species protected by the ESA.

(2) Issuance of a 50-year ITP and Approval of the NiSource MSHCP (Proposed Action)—NiSource has sought to address the full range of its ongoing activities holistically as well as identify and manage species and their habitat impacts systemwide. The Service agreed that a multispecies habitat conservation plan developed under Section 10(a)(1)(B) of the ESA could provide a new opportunity to address and contribute to the conservation and recovery needs of listed species and habitats within the covered lands. Accordingly, NiSource coordinated with the Service to develop its MSHCP to cover a wide array of natural gas pipeline activities over a broad geographic region. Through the MSHCP, NiSource intends to implement a plan that:

• Identifies conservation measures and Best Management Practices to avoid and minimize impacts on species identified in NiSource's MSHCP;
• Identifies mitigation needs of populations where impacts occur; and
• Implements more comprehensive conservation actions and mitigation for its entire system for 50 years.

Alternative 2 involves issuance of an ITP for the requested 50-year term, including approval of the NiSource MSHCP, associated IA, and acceptance by the Cooperating Agencies and the Service that ITP issuance and MSHCP compliance fulfill the agencies' obligations under Section 7 of the ESA. At this time, NiSource is requesting incidental take authorization for 10 species resulting from NiSource's activities within the specified operating territory. An ITP would be issued to NiSource for its activities specific to (1) General Operation and Maintenance (O&M) activities that do not require excavation or significant earth disturbance; (2) safety-related repairs, replacements, and maintenance; and (3) construction and expansion. The proposed area to be covered by the ITP and associated HCP would include a 1-mile-wide corridor centered upon a majority of NiSource's existing interstate natural gas transmission (INGT) system in 14 States (Louisiana, Mississippi, Tennessee, Kentucky, Virginia, West Virginia, North Carolina, Indiana, Ohio, Pennsylvania, New York, New Jersey, Delaware and Maryland) for approximately 15,650 miles. In addition to the designated 1-mile-wide corridor, the ITP and associated MSHCP would also cover 12 counties in Ohio, Pennsylvania, Maryland, and West Virginia, in their entireties, where NiSource operates and intends to expand some of its underground natural gas storage fields. The specific counties this includes are Hocking, Fairfield, Ashland, Knox, and Richland Counties in Ohio; Bedford County in Pennsylvania; Allegany County in Maryland; and Kanawha, Jackson, Preston, Marshall, and Wetzel Counties in West Virginia.

3. Issuance of a 10-year ITP and Approval of the NiSource MSHCP—Alternative 3 involves the same issuance, approval, and acceptance actions detailed above in Alternative 2. However, Alternative 3 considers a permit duration of 10 years, subject to ITP renewal and potential amendments to the MSHCP by NiSource. This alternative would cause a reduced amount of take over a shorter period of time. For a permit duration of 10 years, uncertainty about the MSHCP implementation and environmental consequences would be somewhat reduced. Upon receipt of a request to renew the permit, the Service would re-examine the operating conservation plan to determine whether the biological goals are being met, whether the mitigation approach is functioning as envisioned, whether mitigation is compensating for the take that has occurred over the first 10 years, and whether any adjustment to the incidental take authority may be required as a condition to permit renewal. One result of choosing this alternative, however, is that the mitigation strategy presented in the MSHCP would also be altered, thus involving fewer acres of mitigation for O&M activities at the outset of implementation of the plan. Under this alternative, there also would be a formalized application review process built in by regulation. The Service's permit regulations require that an application for permit renewal or amendment must be made available for public review and comment. The Service also would need to reevaluate the completed NEPA analysis to determine whether the EIS was sufficient in its analysis of project impacts beyond the initial term of the permit. Review of the EIS would be subject to public review concurrent with the permit renewal application.

In addition to the three alternatives described above, the Service considered several alternatives in conjunction with MSHCP development that are described in the draft EIS but dismissed from further consideration. They include alternatives that considered such things as variations on the breadth of covered activities, implementation approach, and covered species.

Reviewing Documents and Submitting Comments

Please refer to TE02636A when submitting comments. The permit application and supporting documents (ITP application, MSHCP, draft EIS, Implementing Agreement, and summary documents) may be obtained on the Internet at the following address: http://www.fws.gov/​midwest/​endangered/​permits/​hcp/​r3hcps.html.

Please make it clear when commenting whether your comments address the HCP, the draft EIS, both the HCP and draft EIS, or other supporting documents.

Persons without access to the Internet may obtain copies of the documents (application, draft HCP, and draft EIS) by contacting the U.S. Fish and Wildlife Service, Ecological Services, 5600 American Blvd. W., Suite 990, Bloomington, MN 55437-1458 (612-713-5350, voice; 612-713-5292, fax). The documents will also be available for public inspection, by appointment, during normal business hours (8 a.m. to 4 p.m.) at the following Regional Offices:

Midwest Region Office: U.S. Fish and Wildlife Service, Ecological Services, 10th Floor—5600 American Blvd. W., Bloomington, MN 55437 (612-713-5350, voice; 612-713-5292, fax);

Southeast Region: 1875 Century Blvd, Suite 200, Atlanta, GA 30345-3319 (404-679-7140, voice; 404-679-7081, fax);

Northeast Region: 300 Westgate Center Drive, Hadley, MA 01035-9589 (413-253-8304, voice; 413-253-8293, fax).

Written comments will be accepted as described under ADDRESSES, above.

Public Meetings

Public meetings will be held at three locations in proximity to the proposed covered lands for this MSHCP. Meetings will be held in Columbus, Ohio; Lexington, Kentucky; and Charleston, West Virginia as follows:

• August 16, 2011, 7 p.m., University Plaza Hotel and Conference Center, 3110 Olentangy River Road, Columbus, OH 43202.
• August 17, 2011, 7 p.m., Ramada Conference Center, 2143 N. Broadway, Lexington, KY 40505.
• August 18, 2011, 7 p.m., Charleston Ramada Plaza, 400 2nd Ave., S. Charleston, WV 25303.

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 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 ESA (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; 43 CFR part 46).

Dated: June 21, 2011.

Richard D. Schultz,

Acting Regional Director, Midwest Region, Fort Snelling, Minnesota.