Draft Environmental Impact Statement for a General Conservation Plan for the Desert Tortoise in California, 82618-82622 [2024-23573]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 89, Number 198 (Friday, October 11, 2024)]
[Notices]
[Pages 82618-82622]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23573]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R8-ES-2023-0084; FXES11140800000-245-FF08ECAR00]


Draft Environmental Impact Statement for a General Conservation 
Plan for the Desert Tortoise in California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; notice of public meetings; request for 
comments.

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[[Page 82619]]

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), provide this 
notice to open a public review period and announce public meetings in 
accordance with the National Environmental Policy Act. We have prepared 
a draft environmental impact statement to evaluate the impacts on the 
human environment related to our proposal to approve and use a general 
conservation plan for the federally threatened desert tortoise 
(Gopherus agassizii) in California to streamline the incidental take 
permitting process under the Endangered Species Act. We invite comment 
from the public and local, State, Tribal, and Federal agencies.

DATES: Submitting Comments: You may submit comments via U.S. mail or 
https://www.regulations.gov/.
     Online: Comments submitted at https://www.regulations.gov/ 
must be received by 11:59 p.m. eastern time on December 10, 2024.
     U.S. mail: Hardcopy comments must be received or 
postmarked on or before December 10, 2024. (See ADDRESSES.)
    Virtual Public Meetings: The Service will hold virtual public 
meetings on November 12, 2024, from 10 a.m. to 11:30 a.m. Pacific Time, 
and on November 13, 2024, from 6 p.m. to 8:30 p.m. Pacific Time. For 
more information, see Public Comments and Virtual Public Meetings under 
SUPPLEMENTARY INFORMATION.

ADDRESSES: 
    Obtaining Documents: The document this notice announces, as well as 
any comments and other materials that we receive, will be available for 
public inspection online in Docket No. FWS-R8-ES-2023-0084 at https://www.regulations.gov.
    Submitting Comments: You may submit comments by 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.
    We will post all comments on https://www.regulations.gov. This 
generally means that we will post online any personal information that 
you provide. We request that you submit comments by only one of the 
methods above. For additional information about submitting comments, 
see Public Comments and Virtual Public Meetings under SUPPLEMENTARY 
INFORMATION.
    Public Meetings: A link and access instructions for the virtual 
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.
    Reviewing U.S. Environmental Protection Agency Comments on the 
Draft Environmental Impact Statement: See EPA's Role in the EIS Process 
under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Peter Sanzenbacher, by telephone at 
442-222-0165 or by email at [email protected]. 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, the U.S. Fish and Wildlife Service 
(Service), have prepared a draft environmental impact statement (DEIS) 
pursuant to the requirements of the National Environmental Policy Act 
of 1969, as amended (NEPA; 42 U.S.C. 4321 et seq.), to analyze the 
effects on the human environment of approving and using a general 
conservation plan (GCP) for the federally threatened desert tortoise 
(Gopherus agassizii) to streamline the incidental take permitting 
process in California. This notice of availability opens a public 
comment period on the DEIS and announces public meetings. The U.S. 
Bureau of Land Management (Bureau) is serving as a cooperating agency 
under NEPA, as some lands under consideration for mitigation activities 
are administered by the Bureau.

Background

    Section 9 of the Endangered Species Act, as amended (ESA; 16 U.S.C. 
1531 et seq.), 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 ESA'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). Regulations at 50 CFR 
17.3 further define ``harass'' as ``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.''
    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 
conservation plan in support of issuance of an incidental take permit.

Desert Tortoise General Conservation Plan

    The Service proposes to approve and use a GCP that would provide 
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 then must 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.

[[Page 82620]]

    In almost every incidental take permit that the Service has 
processed since the listing of the desert tortoise in 1990 (April 2, 
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.
    Within the GCP planning area, we propose to cover commercial, 
agricultural, residential, industrial, and infrastructure activities 
within the defined permit area. The permit area generally encompasses 
non-Federal lands outside of desert tortoise conservation areas. The 
GCP would also cover the operations and maintenance of existing non-
Federal 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 the 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 the GCP.
    Additionally, the permit area includes 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 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.
    We define ``permit area'' and ``mitigation area'' in the GCP. The 
permit area includes the locations where the incidental take permits 
deriving from the GCP would be available to applicants. The permit area 
is comprised of non-Federal lands outside of desert tortoise 
conservation areas in southern Inyo County, eastern Kern County, 
northern Los Angeles County, the desert portion of San Bernardino 
County, eastern Riverside County, eastern San Diego County, and 
portions of Imperial County and the 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 the mitigation area. The 
mitigation area generally includes ``desert tortoise conservation 
areas,'' which the recovery plan for the desert tortoise describes as 
Bureau conservation lands (e.g., 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.
    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 would include 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 the planning area that have 
resulted in the translocation of approximately 52 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 the planning 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, if five large desert 
tortoises die because of activities for which incidental take was 
permitted under the GCP in any calendar year, we will assess the 
adequacy of the minimization measures in the GCP and the specific 
measures associated with individual incidental take permits. If 
administrative changes to the minimization measures in the GCP or the 
specific measures associated with the individual incidental take 
permits are not practical, we will not approve additional incidental 
take permits in that calendar year unless we amend the GCP. We would 
track the aggregate amount of incidental take and make that information 
available to the public.
    The biological goals of the GCP would 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 period of time that the GCP would be available for use, 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.

[[Page 82621]]

National Environmental Policy Act Compliance

Public Scoping Period

    On July 17, 2023 (88 FR 45437), in accordance with NEPA, we 
published a Federal Register notice to open a public scoping period and 
announce our intention to prepare an EIS to evaluate the impacts on the 
human environment related to our proposal to approve and use a GCP for 
the federally threatened desert tortoise. We took comments until August 
31, 2023, and also held three public meetings during the scoping 
period.

Draft Environmental Impact Statement

    The Service, with input from the Bureau as a cooperating agency, 
and after full consideration of all comments received during the public 
scoping period and during the meetings, has prepared a DEIS to evaluate 
the impacts of the proposed GCP action on the human environment, 
consistent with the purpose and goals of NEPA. This DEIS was prepared 
pursuant to the Council on Environmental Quality's (CEQ) implementing 
NEPA regulations at 40 CFR parts 1500-1508, which became effective on 
May 20, 2022 (April 20, 2022, 87 FR 23453), and in compliance with the 
amendments to NEPA included in the Fiscal Responsibility Act of 2023 
(Pub. L. 118-5, 137 Stat. 10 (2023)). The DEIS analyzes the proposed 
action and a reasonable range of alternatives to the proposed action. 
The environmental consequences of each alternative, including the 
direct, indirect, and cumulative effects, were analyzed to determine if 
significant impacts to the human environment would occur. On May 1, 
2024, CEQ published a final rule amending the NEPA implementing 
regulations (89 FR 35442). The final rule became effective on July 1, 
2024, and applies to NEPA processes that begin after that date (40 CFR 
1506.12). The NEPA process for this GCP began in July 2023.
    We analyzed three alternatives in detail in the DEIS.
    Alternative 1--No-Action Alternative: Under the no-action 
alternative, the Service would not approve and use the GCP to 
streamline the incidental take permit process for the desert tortoise 
in California. The Service would continue to evaluate and process 
individual applications for incidental take permits on a case-by-case 
basis and prepare a NEPA document for each incidental take permit 
application; this process generally takes 12 to 24 months to complete.
    Alternative 2--Proposed Action: The proposed action is the 
Service's approval and use of the GCP for the desert tortoise in 
California. The GCP would streamline the permitting process for 
incidental take permits by providing clear direction to project 
proponents regarding the appropriate measures to minimize the 
incidental take of desert tortoises in the permit area and to mitigate 
incidental take in the mitigation area. The approximately 15.2-million-
acre (ac) planning area to be covered by the GCP comprises a large 
portion of the desert tortoise's range in California, including 
portions of Inyo, Kern, Los Angeles, San Bernardino, Riverside, San 
Diego, and Imperial Counties. Within the planning area, the Service has 
identified a permit area, which includes approximately 2.6 million ac 
of non-Federal lands outside of desert tortoise conservation areas and 
existing non-Federal rights-of-way across Federal lands where 
proponents can apply for incidental take permits for the desert 
tortoise for covered activities. The Service also has identified an 
approximately 8.6-million-ac mitigation area on Bureau conservation 
lands (e.g., areas of critical environmental concern, California Desert 
National Conservation Lands), National Park Service lands, and other 
conservation areas or easements managed for desert tortoises where 
mitigation resulting from issuance of incidental take permits under the 
GCP would occur.
    Alternative 3--Action Alternative: Under alternative 3, the Service 
would pursue approval of a GCP for the desert tortoise to facilitate 
the issuance of incidental take permits, as described under alternative 
2. The permit area, covered activities in the permit area, and measures 
to reduce the level of impact from covered activities would be as 
described under the proposed action. Under this alternative, mitigation 
would only occur on lands within desert tortoise conservation areas 
within National Park Service lands, California Desert National 
Conservation Lands administered by the Bureau, and non-Federal lands 
that either are in conservation management or that are acquired for 
conservation management. Other lands included in the mitigation area 
for the proposed action, such as areas of critical environmental 
concern, would not be eligible for mitigation; this would reduce 
mitigation area lands to approximately 7.7 million ac.

EPA's Role in the EIS Process

    The EPA is charged under section 309 of the Clean Air Act with 
reviewing all Federal agencies' EISs and commenting on the adequacy and 
acceptability of the environmental impacts of proposed actions. Under 
the CEQ NEPA regulations, EPA is also responsible for administering the 
EIS filing process. EPA is also publishing a notice in the Federal 
Register announcing this DEIS. The publication date of EPA's notice of 
availability is the official beginning of the public comment period. 
EPA serves as the repository (EIS database) for EISs prepared by 
Federal agencies. You may search for EPA comments on EISs, along with 
EISs themselves, at https://cdxapps.epa.gov/cdx-enepa-II/public/action/eis/search.

Public Comments and Virtual Public Meetings

Submitting Comments

    You may submit your comments and materials on the draft GCP and the 
DEIS by one of the methods in ADDRESSES. We specifically request 
information on the following:
    1. Biological information, analysis, and relevant data concerning 
the desert tortoise, other wildlife, and ecosystems.
    2. Potential effects that the proposed GCP could have on the desert 
tortoise, and other endangered or threatened species, and their 
habitats, including the interaction of the effects of covered 
activities with climate change and other stressors.
    3. Adequacy of the GCP to minimize and mitigate the impact of the 
taking on desert tortoise, including but not limited to conservation 
measures, conditions on covered activities, and adaptive management 
procedures.
    4. Potential effects that the proposed action could have on other 
aspects of the human environment, including effects on plants and 
animals, water resources, and aesthetic, historic, cultural, economic, 
social, environmental justice, climate change, or health effects.
    5. The alternatives analysis conducted by the Service, including 
the alternatives analyzed, the range of alternatives analyzed, and the 
alternatives considered but not analyzed in detail.
    6. 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.
    7. Cumulative effects, which are effects on the environment that 
result from the incremental effects of the action when added to the 
effects of other past, present, and reasonably

[[Page 82622]]

foreseeable actions, as well as any connected actions that are closely 
related and should be discussed in the same DEIS.
    8. The alternatives, information, and analyses submitted during the 
public scoping period and the summary thereof.
    9. Other information relevant to the GCP and its impacts on the 
human environment.

Virtual Public Meetings

    We will conduct two virtual public meetings. See DATES and 
ADDRESSES for the dates and times. During the virtual public meetings, 
the Service and Bureau will present information pertinent to the GCP 
and give the public the opportunity to ask questions about the draft 
GCP and DEIS. Oral or written comments will not be accepted during the 
meeting; written comments may be submitted by one of the methods listed 
in ADDRESSES.

Reasonable Accommodations

    Persons needing reasonable accommodations to participate in the 
public meetings should contact the Service's Carlsbad Fish and Wildlife 
Office, using one of the methods listed in ADDRESSES. To allow 
sufficient time to process requests, please make contact at least 15 
days before the public meetings. Information regarding this proposed 
action is available in alternative formats upon request.

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. Although 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, as 
well as references for supporting documentation we used in preparing 
the DEIS, 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).

Next Steps and Decision To Be Made

    After public review and comment, the Service will evaluate the GCP, 
DEIS, and any comments received to determine whether the GCP provides 
an adequate basis for meeting the requirements of section 10(a)(2)(B) 
of the ESA for future permit applications submitted under the GCP. The 
decision whether to approve and use the GCP will also be informed by 
the data, analyses, and findings in the EIS and public comments 
received on the DEIS and GCP. The Service will document its 
determinations in an ESA section 10 findings document, ESA section 7 
biological opinion, and NEPA record of decision that will be developed 
at the conclusion of the ESA and NEPA compliance processes. FWS expects 
to submit a final EIS (FEIS) for publication in the Federal Register by 
May 2025. At least 30 days after the FEIS is published, we expect that 
the Service will complete a record of decision on the GCP in accordance 
with applicable timeframes established in 40 CFR 1506.11 (2022) and 
issue a decision on the GCP. The current estimate for the issuance of 
record of decision is July 2025.

Authority

    We provide this notice in accordance with the requirements of NEPA 
and its implementing regulations (40 CFR 1503.1 and 1506.6; 2022).

Michael J. Senn,
Assistant Regional Director--Ecological Services, California-Great 
Basin Region, U.S. Fish and Wildlife Service, Sacramento, California.
[FR Doc. 2024-23573 Filed 10-10-24; 8:45 am]
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