Notice of Intent To Prepare a Draft Environmental Impact Statement for the Desert Tortoise General Conservation Plan, CA, 45437-45441 [2023-15037]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 88, Number 135 (Monday, July 17, 2023)]
[Notices]
[Pages 45437-45441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15037]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2023-0084; FXES11140800000-223-FF08ECAR00]


Notice of Intent To Prepare a Draft Environmental Impact 
Statement for the Desert Tortoise General Conservation Plan, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent to prepare an environmental impact statement; 
notice of public scoping meetings; request for comments.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), provide this 
notice to open a public scoping period and announce public scoping 
meetings in accordance with the National Environmental Policy Act. We 
intend to prepare an environmental impact statement (EIS) to evaluate 
the impacts on the human environment related to our proposal to 
implement a general conservation plan for the federally threatened 
desert tortoise (Gopherus agassizii) in California, pursuant to the 
Endangered Species Act.

[[Page 45438]]


DATES: 
    Submitting Comments: We must receive any written comments on or 
before August 31, 2023.
    Public Meetings: The Service will hold three public meetings during 
the scoping period to attempt to allow all interested parties to 
participate.
     In-Person Public Meeting: We will hold an in-person public 
meeting on August 10, 2023, from 6 p.m. to 8 p.m. Pacific Time in 
Victorville, California, at the Hilton Garden Inn (12603 Mariposa Road, 
Victorville, CA 92395).
     Virtual Meetings: We will hold virtual meetings on July 
25, 2023, from 10 a.m. to 12 p.m., and on July 27, 2023, from 6 p.m. to 
8 p.m. Pacific Time. More information about the public meetings is 
available at https://www.virtualpublicmeeting.com/usfws-desert-tortoise-gcp-eis.

ADDRESSES: 
    Obtaining Documents: To assist the public in evaluating the 
Service's proposed action, which would be approval of the general 
conservation plan (GCP), we have provided a preliminary draft GCP for 
review. You may obtain copies of the draft GCP online in Docket No. 
FWS-R8-ES-2023-0084 at https://www.regulations.gov. Public comments 
will also be available at https://www.regulations.gov.
    Submitting Written Comments: You may submit your written comments 
using one of the following methods:
     Online: https://www.regulations.gov. Follow the 
instructions for submitting comments on Docket No. FWS-R8-ES-2023-0084.
     U.S. Mail: Public Comments Processing, Attn: Docket No. 
FWS-R8-ES-2023-0084; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 
Leesburg Pike, Falls Church, VA 22041-3803.
    For more information, see Public Availability of Comments under 
SUPPLEMENTARY INFORMATION.
    Public Meetings: A link and access instructions to the public 
meetings will be posted to https://www.fws.gov/office/carlsbad-fish-and-wildlife at least 1 week prior to the public meeting dates.

FOR FURTHER INFORMATION CONTACT: Ray Bransfield, Fish and Wildlife 
Biologist, by email at [email protected] or via phone at (805) 
677-3398. Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: We provide this notice of intent for 
preparing an environmental impact statement (EIS), opening a public 
scoping period, and announcing public scoping meetings in accordance 
with requirements of the National Environmental Policy Act (NEPA; 42 
U.S.C. 4321 et seq.) and its implementing regulations. The Service will 
serve as the lead Federal agency for purposes of NEPA. We intend to 
prepare an EIS to evaluate the impacts on the human environment related 
to our proposal to approve a general conservation plan for the desert 
tortoise in California, pursuant to the Endangered Species Act of 1973, 
as amended (ESA; 16 U.S.C. 1531 et seq.) The U.S. Bureau of Land 
Management (Bureau) will serve as a cooperating agency under NEPA, as 
some lands under consideration for mitigation activities are 
administered by the Bureau.
    The primary purpose of the scoping process is for the public and 
other parties to assist in developing the draft EIS by identifying 
important issues and alternatives that should be considered. This 
scoping notice was prepared pursuant to the updated regulations 
implementing NEPA, issued by the Council on Environmental Quality on 
July 16, 2020 (85 FR 43304).

Purpose and Need for the Proposed Action

    The purpose of the proposed GCP is to provide a mechanism by which 
the Service can increase efficiency and standardize compliance with 
section 10(a)(1)(B) of the ESA for activities on certain non-Federal 
lands in the plan area that have the potential to incidentally take 
desert tortoises. Instead of a lengthy and complicated processing of 
individual incidental take permit applications and associated habitat 
conservation plans for applicants, the proposed approval and 
implementation of the GCP would allow the Service to substantially 
reduce the time and effort needed to issue incidental take permits that 
meet the parameters established in the GCP while ensuring project 
mitigation contributes to long-term recovery for desert tortoise. The 
GCP would require use of minimization measures that have proven 
effective over time in reducing mortality of desert tortoises during 
various types of activities, including the translocation of desert 
tortoises from non-Federal project sites to conservation areas. The GCP 
would also direct required mitigation to fund or implement recommended 
actions in the revised recovery plan for the desert tortoise (76 FR 
53482) and additional actions to ensure the mitigation contributes to 
the species' long-term recovery.
    Section 10 of the ESA directs the Service to issue incidental take 
permits to non-Federal entities for take of endangered and threatened 
species when the permit applicant satisfies the criteria in section 
10(a)(2)(B). Processing individual incidental take permits requires 
Service staff to conduct lengthy reviews of applicant-prepared 
minimization and mitigation measures for each individual project, to 
prepare appropriate documentation compliant with NEPA, and to conduct 
intra-Service consultation and coordination. The Service and potential 
permit applicants would greatly benefit if the Service is able to (1) 
streamline this process for desert tortoise incidental take permits, 
(2) provide specific direction to applicants to incorporate the most 
current measures to minimize the take of desert tortoises into their 
applications, and (3) better incorporate mitigation from incidental 
take permits into a comprehensive strategy that contributes to recovery 
of the desert tortoise.
    The GCP would fulfill a need for better conservation of the desert 
tortoise within the California desert in a more comprehensive and 
consistent manner. It would also substantially reduce the time and 
effort expended by Service staff in processing individual incidental 
take permits while improving the appropriate standards for protection 
of desert tortoises in development areas and furthering the species' 
recovery in conservation areas.

Preliminary Proposed Action and Alternatives

    As required by 40 CFR 1501.9(d)(2), we are providing a preliminary 
description of the proposed action, which is the Service's approval of 
a GCP for the desert tortoise in California. If we approve use of a 
GCP, project proponents within the GCP's permit areas would be able to 
apply for incidental take permits for the desert tortoise in a 
streamlined manner. The Service would only issue incidental take 
permits under the GCP if the individual applications met its issuance 
criteria, which would provide clear guidance on how to best minimize, 
mitigate, and monitor the effects of incidental take on desert 
tortoises. We will prepare a final EIS prior to deciding on whether to 
approve a GCP.
    The EIS will include a reasonable range of action alternatives and 
a no-action alternative. The action alternatives will likely include

[[Page 45439]]

variations in the duration of the general conservation plan, the size 
and locations of permit and mitigation areas, potential translocation 
areas for desert tortoises found on project sites, and the types of 
effectiveness monitoring. At this time, the Service proposes to approve 
a GCP with a duration of 10 years, with an option to renew it if it is 
meeting expectations, covering a broad range of development activities, 
translocating desert tortoises into conservation areas to augment 
depleted populations, and implementing recovery actions within the 
broad desert tortoise conservation areas described in the recovery 
plan. Regarding the duration of the GCP, we may consider longer or 
shorter alternatives. We will consider alternatives to translocating 
desert tortoises long distances to conservation areas, such as moving 
them to parcels that are closer to the sites of development. We will 
also evaluate whether to include or exclude specific areas outside of 
conservation areas where the GCP would be available and whether to 
include or exclude specific areas within conservation areas to use for 
mitigation. Under the no-action alternative, the Service would not 
approve the GCP and would not implement a streamlined process for 
considering incidental take permits.

Background

Endangered Species Act

    Section 9 of the ESA prohibits the ``take'' of fish and wildlife 
species listed as endangered under section 4 (16 U.S.C. 1538 and 16 
U.S.C. 1533, respectively). The Endangered Species Act's implementing 
regulations extend, under certain circumstances, the prohibition of 
take to threatened species (50 CFR 17.31). Under section 3 of the ESA, 
the term ``take'' means to ``harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or attempt to engage in any such 
conduct'' (16 U.S.C. 1532(19)). The regulations define ``harm'' as ``an 
act which actually kills or injures wildlife. Such act may include 
significant habitat modification or degradation where it actually kills 
or injures wildlife by significantly impairing essential behavioral 
patterns, including breeding, feeding, or sheltering'' (50 CFR 17.3).
    Under section 10(a)(1)(B) of the ESA, the Service may issue permits 
to authorize incidental take of listed fish and wildlife species. The 
implementing regulations for incidental take permits define 
``incidental taking'' as ``any taking otherwise prohibited, if such 
taking is incidental to, and not the purpose of, the carrying out of an 
otherwise lawful activity'' (50 CFR 17.3). Section 10(a)(2)(B) of the 
ESA lists the criteria for the Service's issuance of incidental take 
permits to non-Federal entities. If the applicant meets the following 
criteria, the Service must issue an incidental take permit:
    1. The taking will be incidental;
    2. The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such taking;
    3. The applicant will ensure that adequate funding for the plan 
will be provided;
    4. The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild; and
    5. The applicant will carry out any other measures that the Service 
may require as being necessary or appropriate for the purposes of the 
GCP in support of issuance of an incidental take permit.

Desert Tortoise General Conservation Plan

    The Service proposes to approve a GCP that provides specific 
direction regarding how to best minimize, mitigate, and monitor the 
effects of incidental take to applicants seeking ESA section 
10(a)(1)(B) permits for the desert tortoise within a defined permit 
area. Under standard practices, applicants are responsible for 
developing the ``conservation plan'' required by section 10(a)(2)(A) of 
the ESA; the development of the conservation plans and iterative 
reviews require substantial time and effort, both for the applicant and 
Service staff. The Service must then prepare a NEPA document for public 
review, address any comments received from the public, conduct an 
internal consultation pursuant to section 7(a)(2) of the ESA, and 
conclude the NEPA process before reaching a decision on whether to 
issue the incidental take permit.
    In almost every incidental take permit that the Service has 
processed since the listing of the desert tortoise in 1990 (55 FR 
12178), the applicant and Service agreed on the most appropriate means 
of minimizing, mitigating, and monitoring the effects of take on desert 
tortoises soon after the applicant contacted us. However, the standard 
practices described in the previous paragraph generally require at 
least 12 to 24 months to complete. A streamlined approach to the 
process, with more direction upfront from Service staff, would result 
in more effective means of minimizing and mitigating impacts to desert 
tortoises and allow staff to expend more time on implementing recovery 
work, with overall concomitant positive effects on the recovery of the 
species. Such a process would also provide a higher degree of certainty 
to applicants.

Covered Activities

    We propose to cover commercial, agricultural, residential, 
industrial, and infrastructure development within the planning area 
that a Federal agency does not fund, authorize, or carry out. The GCP 
would also cover the operations and maintenance of existing facilities, 
such as utilities' transmission and distribution lines. The Service 
intends the covered activities to be inclusive; that is, we will 
consider for coverage any future activity that has the same general 
effects on the desert tortoise as those described in this GCP. The 
Service will retain the right to recommend that the non-Federal entity 
pursue an individual incidental take permit if the scope of the 
proposed activity is likely to affect desert tortoises in a manner that 
we have not considered in this GCP.
    Additionally, the GCP would cover activities along existing rights 
of way in the California desert where the Federal agency no longer has 
discretionary authority; consequently, interagency consultation, 
pursuant to section 7(a)(2) of the ESA, does not apply in these areas. 
The GCP would apply to such rights of way that lie within conservation 
areas. Within conservation areas, the GCP would be available only for 
projects that intended to improve the safety and functionality of the 
existing right of way; the Service will not consider its use 
appropriate if the proposed project changes the basic function of the 
existing right of way.

Plan Areas

    We propose to define ``permit areas'' and ``mitigation areas'' in 
the GCP. The permit area would be the area where incidental take 
permits deriving from the GCP would be available to applicants. Non-
Federal lands outside of conservation areas in southern Inyo County, 
eastern Kern County, northern Los Angeles County, the desert portion of 
San Bernardino County, eastern Riverside County, and portions of 
Imperial County comprise the permit areas. As discussed in the previous 
section, the GCP would also apply to existing non-Federal rights of way 
across Federal lands under certain circumstances.
    The required mitigation for issuance of an incidental take permit 
would occur within the boundaries of mitigation areas. Mitigation areas 
would generally include ``desert tortoise conservation areas,'' which 
the recovery

[[Page 45440]]

plan for the desert tortoise describes as Bureau of Land Management 
conservation lands (California Desert National Conservation Lands and 
areas of critical environmental concern) as identified in the 
California Desert Conservation Area Plan, as amended by the Desert 
Renewable Energy Conservation Plan, National Park Service lands, and 
other conservation areas or easements managed for desert tortoises.

Covered Species

    The Mojave population of desert tortoise is the only species 
proposed for coverage under the GCP. The Service listed the Mojave 
population of desert tortoise (all desert tortoises north and west of 
the Colorado River in Arizona, Utah, Nevada, and California) as 
threatened on April 2, 1990. We designated critical habitat for the 
desert tortoise in California, Nevada, Arizona, and Utah in a final 
rule published February 8, 1994 (59 FR 5820).
    The GCP includes an analysis of impacts to the desert tortoise that 
are likely to result from covered activities. We anticipate that 
incidental take permits under the GCP would result in the take of few 
desert tortoises. We have reached that conclusion because, since the 
listing of the desert tortoise in 1990, we have issued 14 incidental 
take permits for the desert tortoise in California that have resulted 
in the translocation of approximately 43 desert tortoises. We are 
unaware of any desert tortoises that died during permitted activities.
    Additionally, we have limited the GCP's permit area to portions of 
the desert where conservation of the desert tortoise in the long term 
is infeasible, with the exception of non-Federal rights of way that 
comprise a negligible portion of plan area. Based on analysis in the 
original and revised recovery plans for the desert tortoise, we 
consider recovery of the desert tortoise to be infeasible in the permit 
area because most of the land there is in private ownership; it would 
be practically and financially impossible to secure and manage habitat 
in that area, which also frequently includes rural development and its 
associated impacts to desert tortoises.
    We have not proposed a numerical limit on the number of desert 
tortoises that use of the GCP may affect. Instead, we would evaluate 
the survey results of individual applicants for incidental take permits 
and authorize an appropriate amount of incidental take based on the 
survey results and the nature of the proposed project. We would track 
the aggregate amount of incidental take and make that information 
available to the public.
    The biological goals of the GCP focus on minimizing the amount of 
take of desert tortoises and maximizing the conservation benefits of 
the mitigation that results from the issuance of incidental take 
permits. To minimize the number of desert tortoises that proposed 
actions would kill or injure, the Service would require permittees to 
implement standard methods, such as fencing work areas, surveying for 
individuals within project areas, translocating desert tortoises to 
suitable off-site habitat, implementing worker education programs, 
implementing measures to manage predators on site, and contributing to 
the regional management program for common ravens (Corvus corax). Over 
the course of implementation of the GCP, the Service would update 
protocols for various protective measures, such as testing for disease, 
as new information and improved methods become available.
    To mitigate the effects of take and maximize conservation benefits 
for desert tortoises, the GCP would provide applicants with several 
options, such as land acquisition (securing and conserving habitat), 
non-acquisition (restoration and enhancement of habitat), purchase of 
mitigation bank credits, other actions needed to protect and conserve 
desert tortoises, or a combination of these activities. The Service 
would require that all mitigation occur within the conservation areas 
as defined in the recovery plan for the desert tortoise and mapped in 
the GCP that will contribute to long term conservation of desert 
tortoise.

Summary of Anticipated Impacts

    The draft EIS will identify and describe the effects of the GCP 
alternative and a range of other reasonable alternatives on the human 
environment that are reasonably foreseeable and have a reasonably close 
causal relationship to the proposed action. This includes effects that 
occur at the same time and place as the proposed action or alternatives 
and/or effects that are later in time or farther removed in distance 
from the proposed action or alternatives. Expected impacts include, but 
are not limited to, positive and negative impacts to the desert 
tortoise, geology and soils, air quality, water resources, other 
biological resources, health and safety, land use, recreation, 
aesthetics, historical and cultural resources, transportation, public 
services and utilities, and socioeconomics. We will analyze the effects 
of these expected impacts in the draft EIS.
    The analysis will consider the adequacy of each alternative to 
maintain or enhance the status of the desert tortoise in light of the 
expected effects and other best available information. Impacts on air 
quality, water resources, and other biological resources, such as fish, 
wildlife, and the desert ecosystem, will be evaluated at a broad, 
programmatic level of detail and are expected to include incremental 
negative impacts from development that are minimized and or mitigated 
at the landscape level through application of applicable law, including 
local and State regulations. Under each alternative, significant 
impacts to water resources, State-protected species, and ecosystems 
would typically be avoided or minimized by the local agency's 
compliance with local and State regulations governing development. We 
expect that most, if not all, of the projects that applicants may 
propose to cover under the GCP would undergo additional public review 
under the California Environmental Quality Act.

Schedule for the Decision-Making Process

    The Service will conduct an environmental review to analyze the 
effects of the proposed action, along with a range of other reasonable 
alternatives in the draft EIS. Following completion of the 
environmental review, the Service will publish a notice of availability 
and request for public comments on the draft EIS and the revised draft 
GCP. The Service expects to make the draft EIS and revised draft GCP 
available to the public in summer 2023. After public review and 
comment, we will review any comments we receive and any other new 
information to determine whether to approve the GCP for use. We will 
also evaluate whether implementation of the GCP would comply with 
section 7(a)(2) of the ESA. The Service expects to make the final EIS 
and final GCP available to the public in late 2023. At least 30 days 
after the final EIS is available, the Service will complete the record 
of decision in accordance with applicable timeframes established in 40 
CFR 1506.11.

Public Scoping Process

    The issuance of this notice of intent provides an opportunity for 
public involvement in the scoping process to guide the development of 
the EIS.
    To attempt to allow all interested parties to participate, the 
Service will hold three public meetings during the scoping period, both 
in-person and

[[Page 45441]]

virtual. See DATES and ADDRESSES for the dates and times of the public 
scoping meetings. The public scoping meetings will provide the Service 
an opportunity to present information pertinent to the GCP and for the 
public to ask questions on the scope of issues and alternatives we 
should consider when preparing the draft EIS and to discuss ideas with 
Service staff. We will not record comments at the public meetings; we 
will accept scoping comments only in writing, by the methods listed in 
ADDRESSES.

Reasonable Accommodations

    Persons needing reasonable accommodations to attend and participate 
in the public scoping meetings should contact the Service's Palm 
Springs Fish and Wildlife Office, using one of the methods listed in 
FOR FURTHER INFORMATION CONTACT as soon as possible. To allow 
sufficient time to process requests, please make contact no later than 
1 week before the desired public meeting. Information regarding this 
proposed action is available in alternative formats upon request.

Request for Identification of Potential Alternatives, Information, and 
Analyses Relevant to the Proposed Actions

    We request data, comments, views, arguments, new information, 
analysis, new alternatives, or suggestions on the proposed action from 
the public; affected Federal, State, Tribal, and local governments, 
agencies, and offices; the scientific community; industry; or any other 
interested party. We will consider these comments in developing the 
draft EIS. Specifically, we seek:
    1. Biological information, analysis and relevant data concerning 
the desert tortoise and other wildlife;
    2. Potential effects that the GCP could have on the desert tortoise 
and its associated ecological communities or habitats;
    3. Potential effects that the GCP could have on other aspects of 
the human environment, including ecological, aesthetic, historic, 
cultural, economic, social, environmental justice, or health effects;
    4. Other possible reasonable alternatives to the proposed action 
that the Service should consider, including additional or alternative 
avoidance, minimization, and mitigation measures;
    5. The presence of historic properties--including archaeological 
sites, buildings and structures, historic events, sacred and 
traditional areas, and other historic preservation concerns--in the 
proposed permit area, which are required to be considered in project 
planning by the National Historic Preservation Act;
    6. Information on other current or planned activities in, or in the 
vicinity of, the plan area and their possible impacts on the desert 
tortoise, including any connected actions that are closely related and 
should be discussed in the same draft EIS; and
    7. Other information relevant to the GCP and its impacts on the 
human environment.
    Once the Service has prepared the draft EIS, we will provide 
further opportunity for comment on the GCP through an additional public 
comment period.

Public Availability of Comments

    You may submit your comments and materials by one of the methods 
listed in ADDRESSES. Before including your address, phone number, or 
other personal identifying information in your comment, you should be 
aware that your entire comment, including your personal identifying 
information, might be made publicly 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. All submissions from organizations or businesses, and 
from individuals identifying themselves as representatives or officials 
of organizations or businesses, will be made available for public 
disclosure in their entirety.
    Comments and materials we receive and supporting documentation we 
use in preparing the draft EIS will be available for public inspection 
online in Docket No. FWS-R8-ES-2023-0084 at https://www.regulations.gov 
(see FOR FURTHER INFORMATION CONTACT).

Decision Maker and Nature of Decision To Be Made

    The decision maker is the Assistant Regional Director for 
Ecological Services (ARD) of the Pacific Southwest Region of the 
Service. If, after publication of the record of decision, we determine 
that all requirements are met for approval of incidental take permits 
under the GCP, the ARD will issue a decision on whether to approve the 
GCP.

Authority

    We provide this notice in accordance with the requirements of 
section 10(c) of the Endangered Species Act of 1973 (16 U.S.C. 1539(c)) 
and its implementing regulations (50 CFR 17.22) and National 
Environmental Policy Act regulations pertaining to the publication of a 
notice of intent to issue an environmental impact statement (40 CFR 
1501.9(d)).

Michael J. Senn,
Assistant Regional Director--Ecological Services, Pacific Southwest 
Region, U.S. Fish and Wildlife Service, Sacramento, California.
[FR Doc. 2023-15037 Filed 7-14-23; 8:45 am]
BILLING CODE 4333-15-P