Endangered Species; File No: 26645, 3392-3393 [2023-00902]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 88, Number 12 (Thursday, January 19, 2023)]
[Notices]
[Pages 3392-3393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00902]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[RTID 0648-XC688]


Endangered Species; File No: 26645

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

ACTION: Notice; issuance of a permit.

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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: 971-322-7436 or 
email: [email protected]. or Celeste Stout (phone: 301-427-8436 or 
email: [email protected]).

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

[[Page 3393]]

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.
[FR Doc. 2023-00902 Filed 1-18-23; 8:45 am]
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