[Federal Register Volume 79, Number 69 (Thursday, April 10, 2014)]
[Rules and Regulations]
[Pages 20073-20085]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07298]
[[Page 20073]]
Vol. 79
Thursday,
No. 69
April 10, 2014
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Special Rule for the
Lesser Prairie-Chicken; Final Rule
Federal Register / Vol. 79 , No. 69 / Thursday, April 10, 2014 /
Rules and Regulations
[[Page 20074]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2012-0071: 4500030113]
RIN 1018-AY21
Endangered and Threatened Wildlife and Plants; Special Rule for
the Lesser Prairie-Chicken
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, finalize a special
rule under authority of section 4(d) of the Endangered Species Act of
1973, as amended (Act), that provides measures that are necessary and
advisable to provide for the conservation of the lesser prairie-chicken
(Tympanuchus pallidicinctus).
DATES: This rule is effective May 12, 2014.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov under Docket No. FWS-R2-ES-2012-0071 and at https://www.fws.gov/southwest/es/LPC.html. Comments and materials we received
are available for public inspection at http://www.regulations.gov. All
of the comments, materials, and documentation that we considered in
this rulemaking are available by appointment, during normal business
hours at: U.S. Fish and Wildlife Service, Oklahoma Ecological Services
Field Office, 9014 East 21st Street, Tulsa, OK 74129; telephone 918-
581-7458; facsimile 918-581-7467.
FOR FURTHER INFORMATION CONTACT: Alisa Shull, Field Supervisor,
Oklahoma Ecological Services Field Office, 9014 East 21st Street,
Tulsa, OK 74129; telephone 918-581-7458; facsimile 918-581-7467.
Persons who use a telecommunications device for the deaf (TDD) may call
the Federal Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On December 11, 2012, we published in the Federal Register a
proposed rule to list the lesser prairie-chicken as a threatened
species under the Act (77 FR 73828). On May 6, 2013, we published in
the Federal Register a proposed special rule under section 4(d) of the
Act (16 U.S.C. 1531 et seq.) for the lesser prairie-chicken (78 FR
26302), and we accepted public comments on our proposal for 45 days,
ending June 20, 2013. On December 11, 2013, we proposed to revise the
special rule (78 FR 75306), and we accepted public comments on that
revised proposal for 30 days, ending January 10, 2014. On January 29,
2014, we reopened the public comment period on the proposed revised
special rule for 2 weeks, ending February 12, 2014 (79 FR 4652).
Elsewhere in today's Federal Register, we published a final rule to
list the lesser prairie-chicken as a threatened species. Please see the
final listing rule for additional information concerning previous
Federal actions for the lesser prairie-chicken.
Background
This document discusses only those topics directly relevant to the
special rule under section 4(d) of the Act for the lesser prairie-
chicken (which we refer to as the ``4(d) special rule'' in this
document). For more information on the lesser prairie-chicken and its
habitat, please refer to the final listing rule published elsewhere in
today's Federal Register, which is also available online at http://www.regulations.gov (at Docket No. FWS-R2-ES-2012-0071) or from the
Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
As discussed in the final listing rule, the primary factors
supporting the threatened species status for the lesser prairie-chicken
are the impacts of cumulative habitat loss and fragmentation. These
impacts are the result of conversion of grasslands to agricultural
uses; encroachment by invasive, woody plants; wind energy development;
petroleum production; and presence of roads and manmade vertical
structures, including towers, utility lines, fences, turbines, wells,
and buildings.
The Act does not specify particular prohibitions, or exceptions to
those prohibitions, for threatened species. Instead, under section 4(d)
of the Act, the Secretary of the Interior has the discretion to issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation of such species. The Secretary also has the discretion
to prohibit by regulation, with respect to any threatened species, any
act prohibited under section 9(a)(1) of the Act. Exercising this
discretion, the Service developed general prohibitions (50 CFR 17.31)
and exceptions to those prohibitions (50 CFR 17.32) under the Act that
apply to most threatened species. Alternately, for other threatened
species, the Service may develop specific prohibitions and exceptions
that are tailored to the specific conservation needs of the species. In
such cases, some of the prohibitions and authorizations under 50 CFR
17.31 and 17.32 may be appropriate for the species and incorporated
into a special rule under section 4(d) of the Act, but the 4(d) special
rule will also include provisions that are tailored to the specific
conservation needs of the threatened species.
In recognition of conservation efforts that provide for
conservation and management of the lesser prairie-chicken and its
habitat in a manner consistent with the purposes of the Act, we are
finalizing a 4(d) special rule which outlines the prohibitions, and
exceptions to those prohibitions, necessary and advisable for the
conservation of the lesser prairie-chicken.
Summary of Changes From the Revised Proposed Rule
Based on information we received in public comments (see Summary of
Comments and Recommendations), we revised the provisions of the 4(d)
special rule to provide greater clarity around the activities that are
covered by this rule.
Provisions of the 4(d) Special Rule for the Lesser Prairie-Chicken
Under section 4(d) of the Act, the Secretary may publish a special
rule that modifies the standard protections for threatened species with
special measures tailored to the conservation of the species that are
determined to be necessary and advisable. Under this 4(d) special rule,
the Service provides that all of the prohibitions under 50 CFR 17.31
and 17.32 will apply to the lesser prairie-chicken, except as noted
below. This 4(d) special rule will not remove or alter in any way the
consultation requirements under section 7 of the Act.
Lesser Prairie-Chicken Range-Wide Conservation Plan
The final 4(d) special rule provides that take incidental to
activities conducted by a participant enrolled in, and operating in
compliance with, the Lesser Prairie-Chicken Interstate Working Group's
Lesser Prairie-Chicken Range-Wide Conservation Plan (rangewide plan)
will not be prohibited. The Service has included this provision in the
final 4(d) special rule in recognition of the significant conservation
planning efforts of the five State wildlife agencies within the range
of the lesser prairie-chicken.
[[Page 20075]]
Description of the Rangewide Plan
The rangewide plan is a voluntary conservation strategy that
establishes a mitigation framework which is administered by the Western
Association of Fish and Wildlife Agencies (WAFWA) for the purpose of
allowing plan participants the opportunity to mitigate any unavoidable
impacts of a particular activity on the lesser prairie-chicken and
provides financial incentives to landowners who voluntarily participate
and manage their property for the benefit of the lesser prairie-
chicken. More specifically, the rangewide plan:
(1) Identifies rangewide ecoregional goals for the lesser prairie-
chicken.
(2) Identifies desired habitat amounts and conditions to achieve
the population goals.
(3) Uses a decision support tool that identifies focal areas and
connectivity zones where lesser prairie-chicken conservation actions
will be emphasized to produce the habitat conditions required to
conserve the species at sustainable levels.
(4) Enhances programs and cooperative efforts to encourage and
expand voluntary landowner cooperation in the development and
maintenance of the desired habitat conditions.
(5) Promotes agreements designed to avoid and minimize impacts to
lesser prairie-chicken habitat from various development activities and,
where avoidance is not possible, mitigate impacts.
(6) Establishes a mitigation framework administered by WAFWA that
could be used by any entity to offset impacts to lesser prairie-chicken
habitat with offsite mitigation.
(7) Identifies research needs and implements monitoring.
(8) Develops an adaptive management framework that will incorporate
monitoring and new information into future adjustments to the
conservation strategy to maximize benefits to the lesser prairie-
chicken.
(9) Addresses input and suggestions from agencies, organizations,
landowners, industries, other stakeholders, and the general public on
the conservation plan for the lesser prairie-chicken.
The rangewide plan identifies rangewide and ecoregional population
goals for the lesser prairie-chicken and the amount and condition of
habitat desired to achieve those population goals, including focal
areas and connectivity zones where much of the conservation would be
targeted. The rangewide population goal, based on an annual spring
average over a 10-year time frame, is set at 67,000 birds. The
rangewide plan identifies four ecoregions as described by McDonald et
al. (2012, p. 7): The Shinnery Oak Prairie Region (eastern New Mexico
and southwest Texas panhandle), the Sand Sagebrush Prairie Region
(southeastern Colorado, southwestern Kansas, and western Oklahoma
panhandle), the Mixed Grass Prairie Region (northeastern Texas
panhandle, western Oklahoma, and south central Kansas), and the Short
Grass/CRP Mosaic region (northwestern Kansas). The ecoregional specific
goals have been set at 8,000 birds in the Shinnery Oak Prairie Region,
10,000 birds for the Sand Sagebrush Prairie Region, 24,000 birds in the
Mixed Grass Prairie Region, and 25,000 the Short Grass/CRP Mosaic
region. These ecoregional goals and the overall rangewide population
goal may be adjusted after the first 10 years of implementation using
principles of adaptive management.
The rangewide plan incorporates a focal area strategy as a
mechanism to identify and target the population and habitat goals
established by the plan. This focal area strategy is intended to direct
conservation efforts into high-priority areas and facilitate creation
of large blocks of quality habitat, in contrast to untargeted
conservation efforts spread across larger areas that typically result
in smaller, less contiguous blocks of appropriately managed habitat.
These focal areas typically have the following characteristics: Average
focal area size is at least 20,234 hectares (ha) (50,000 acres (ac));
at least 70 percent of habitat within each focal area is high quality;
and focal area has enhanced connectivity, with each focal area
generally located no more than 32 kilometers (km) (20 miles (mi)) apart
and connected by delineated zones between neighboring focal areas that
provide suitable habitat and allow for movement between the focal
areas. Citing Hagen et al. (in review), the rangewide plan describes
quality lesser prairie-chicken habitat as habitats generally considered
to have vegetation conditions that support greater than 35 percent
canopy cover of grasses, shrubs, and forbs, consisting of greater than
50 percent composition of preferred species of shrubs and grasses, and
have the appropriate structure to provide intermixed nesting and
brooding habitat. The corridors connecting the focal areas also
generally have certain characteristics: Habitat within the identified
corridors consists of at least 40 percent good to high quality habitat;
distances between existing habitat patches are no more than 3.2 km (2
mi) apart; corridor widths are at least 8 km (5 mi); and habitat
contains few, if any, barriers to lesser prairie-chicken movement. The
lack of an identified connection between focal areas in the Shinnery
Oak Prairie Region with focal areas in the remaining regions is the
obvious exception to the identified focal area guidelines. The Shinnery
Oak Prairie Region is separated from the other regions by a distance of
over 300 km (200 mi) of unfavorable land uses and very little suitable
lesser prairie-chicken habitat.
Table 1 identifies the covered activities, arranged by industry,
under the rangewide plan. While the covered activities are arranged by
industry for convenience, any of the activities may be conducted by any
enrolled participant.
Table 1--Activities Covered Under the Lesser Prairie-Chicken Range-Wide
Conservation Plan
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Oil and Gas Activities
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Seismic and Land Surveying.
Construction.
Drilling, Completion, and Workovers (Re-Completion).
Operations and Maintenance.
Plugging and Remediation.
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Agricultural Activities
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Brush Management.
Building and Maintaining Fences and Livestock Structures.
Grazing.
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Water/windmill.
Disturbance Practices.
Crop Production.
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Wind Power, Cell and Radio Towers, and Power Line Activities
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Construction.
Operations and Maintenance.
Decommissioning and Remediation.
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Road Activities
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Construction.
Operations and Maintenance.
Decommissioning and Remediation.
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General Activities
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Off-highway Vehicle (OHV) Activity.
General Construction.
Hunter Harvest (incidental to legal hunting of greater prairie-chickens
where the ranges of the two species overlap).
Other Land Management (such as prescribed burns, game and predator
management, and remediation of impacted habitat back to baseline
conditions).
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The mitigation framework used in the rangewide plan incentivizes
avoidance and minimization of impacts to lesser prairie-chicken
habitat. The metrics system within this framework provides a pathway to
mitigate for all impacts to habitat through a biologically based system
that incorporates space, time, and habitat quality. It also implements
an offset-to-impact mitigation ratio of 2-to-1 to ensure that offsets
are greater than impacts, resulting in a net conservation benefit for
the lesser prairie-chicken. Mitigation fees will be split between
permanent conservation efforts (25 percent) and short-term management
contracts (75 percent) that will shift on the landscape over time
within the action area identified in the rangewide plan. Mitigation
dollars will be offered to landowners within the lesser prairie-chicken
range for voluntarily implementing conservation practices that benefit
the species. Landowner payments will be calculated based on the
landowner's acreage and its location and habitat quality. To
incentivize conservation in the best places for lesser prairie-
chickens, landowners in high-priority locations with optimal habitat
will be paid 125 percent of the standard cost of implementing the
needed conservation practice, as defined by the U.S. Department of
Agriculture's Natural Resources Conservation Service (NRCS).
The rangewide plan incorporates principles of adaptive management
in several circumstances. The primary reason for using adaptive
management in the rangewide plan is to allow for changes in the
conservation measures that may be necessary to reach the stated
population goals. The mitigation and conservation activities
implemented under the rangewide plan will be monitored to identify
whether they are producing the required results. Some of the factors
that will be evaluated regularly under the rangewide plan include
estimates of lesser prairie-chicken population size, progress toward
habitat goals, conservation practice costs, avoidance of high priority
conservation areas, and management prescriptions. Using this
information, every 5 years, a science subcommittee under WAFWA will
conduct a rigorous review to assess, among other things, the progress
toward achieving the stated population and habitat goals of the
rangewide plan. New standards will be considered (1) for conservation
practices that have not maintained lesser prairie-chicken habitat
quality in at least 3 of 5 years where maintenance of habitat quality
was the desired outcome, and (2) for practices that have not resulted
in at least a measurable level of improvement in lesser prairie-chicken
habitat quality where such improvements were the desired outcome.
Evaluation of the Rangewide Plan
On May 6, 2013 (78 FR 26302), the Service proposed a 4(d) special
rule for the lesser prairie-chicken that stated incidental take of the
lesser prairie-chicken would not be considered a violation of section 9
of the Act if the take results from implementation of a comprehensive
lesser prairie-chicken conservation program that:
(A) Was developed by or in coordination with the State agency or
agencies, or their agent(s), responsible for the management and
conservation of fish and wildlife within the affected State(s);
(B) Has a clear mechanism for enrollment of participating
landowners; and
(C) Was determined by the Service to provide a net conservation
benefit to the lesser prairie chicken, in consideration of the
following:
(1) Comprehensively addresses all of the threats affecting the
lesser prairie-chicken within the program area;
(2) Establishes objective, measurable biological goals and
objectives for population and habitat necessary to ensure a net
conservation benefit, and provides the mechanisms by which those goals
and objectives will be achieved;
(3) Includes the administrative and funding mechanisms necessary
for effectively implementing all elements of the program, including
enrollment of participating landowners, monitoring of program
activities, and enforcement of program requirements;
(4) Employs an adaptive management strategy to ensure future
program adaptation as necessary and appropriate; and
(5) Includes appropriate monitoring of effectiveness and
compliance.
(D) Is periodically reviewed by the Service as meeting the
objective for which it was originally established.
In working with the Lesser Prairie-Chicken Interstate Working
Group, we later reviewed the rangewide plan in light of the criteria
that were published in the May 6, 2013, proposed 4(d) special rule. The
plan includes a strategy to address threats to the lesser prairie-
chicken throughout its range, establishes measurable biological goals
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and objectives for population and habitat, provides the framework to
achieve those goals and objectives, demonstrates the administrative and
financial mechanisms necessary for successful implementation, and
includes adequate monitoring and adaptive management provisions.
Furthermore, we understand all permanent habitat offset units will meet
the Service's conservation banking standards, including: (1) Real
estate assurance in the form of a perpetual conservation easement grant
held by a qualified third party and recorded in the county in which the
offset unit is located (or other equivalent appropriate land protection
instrument); (2) development of a land management plan that includes an
adaptive management strategy and identifies all tasks and associated
costs necessary to operate, manage, monitor, and report on the habitat
offset unit; (3) a long-term funding mechanism (i.e., endowment)
adequately sized to fund all tasks identified in the land management
plan, to be held by an entity qualified to manage and disburse such
funds; and (4) all other measures required under Service mitigation
policies. In addition, credits may not be generated on habitat offset
units from Federal funds such as cost share and easement programs that
provide landowners with funding for habitat improvements and improved
land use practices (e.g., the U.S. Department of Agriculture's
Conservation Reserve Program, the Service's Partners for Wildlife
Program).
For these reasons, on October 23, 2013, the Service announced our
endorsement of the rangewide plan as a comprehensive conservation
program that reflects a sound conservation design and strategy that,
when implemented, will provide a net conservation benefit to the lesser
prairie-chicken. Ultimately, the rangewide plan is one that, when
implemented, will address the conservation needs of the lesser prairie-
chicken.
Accordingly, on December 11, 2013, we published in the Federal
Register (78 FR 75306) a revised proposed 4(d) special rule to
specifically exempt from the prohibitions of section 9 of the Act take
that occurs on privately owned, State, or county land from activities
that are conducted by a participant enrolled in, and operating in
compliance with, the Lesser Prairie-Chicken Interstate Working Group's
Lesser Prairie-Chicken Range-Wide Conservation Plan, as endorsed by the
U.S. Fish and Wildlife Service.
The Service included this provision of the 4(d) special rule to
encourage participants of the Service-endorsed rangewide plan to
improve habitat conditions and the status of the species across its
entire range. The Service has determined that the rangewide plan is
expected to provide a net conservation benefit to the lesser prairie-
chicken population. Conservation, as defined in section 3(3) of the
Act, means ``to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to [the] Act are no
longer necessary.'' Through adaptive management, the rangewide plan
will also be periodically reviewed by WAFWA and the Service to ensure
it continues to provide a net conservation benefit to the lesser
prairie-chicken. As a result of this adaptive management provision, the
Service expects that rangewide conservation actions will provide for
the conservation of the lesser prairie-chicken.
Agricultural Activities Conducted in Accordance With NRCS's Lesser
Prairie-Chicken Initiative and Related NRCS Lesser Prairie-Chicken
Conservation Activities
This final 4(d) special rule provides that take of the lesser
prairie-chicken will not be prohibited provided the take is incidental
to the conditioned conservation practices that are carried out in
accordance with a conservation plan developed by NRCS in connection
with NRCS's Lesser Prairie-Chicken Initiative (LPCI) and related NRCS
activities focused on lesser prairie-chicken conservation consistent
with the provisions of the November 22, 2013, conference opinion that
was developed in coordination with the Service. Conditioned
conservation practices are NRCS standard conservation practices to
which the Service and NRCS have added specific requirements in the form
of conservation measures so that when the measure is followed, impacts
to the lesser prairie-chicken will be avoided or minimized.
The LPCI and related NRCS activities provide financial and
technical assistance to participating landowners to implement practices
beneficial to the lesser prairie-chicken that also contribute to the
sustainability of landowners' agricultural operations. Conservation
practices, such as brush management, prescribed grazing, range
planting, prescribed burning, and restoration of rare and declining
habitats, are used to treat upland wildlife habitat concerns identified
as limiting factors for the lesser prairie-chicken during the
conservation planning process. This conservation initiative promotes
implementation of specific conservation practices to manage, enhance,
and expand lesser prairie-chicken habitats within the context of
sustainable ranching.
The vast majority of lesser prairie-chicken habitat occurs on
privately owned and operated lands across the five-State range;
therefore, the voluntary actions of private landowners are key to
maintaining, enhancing, restoring, and reconnecting habitat for the
species. The overall goal of the LPCI is to increase lesser prairie-
chicken abundance and distribution through habitat improvements by
addressing local and landscape-level threats. Over the long term, the
Service and NRCS anticipate that the LPCI will facilitate the expansion
of lesser prairie-chicken range into suitable portions of the historic
range as habitat conditions improve and threats are reduced or
eliminated.
Conference procedures under section 7 of the Act are required only
when a Federal agency (action agency) proposes an activity that is
likely to jeopardize the continued existence of a species that has been
proposed for listing under the Act or when the proposed activity is
likely to destroy or adversely modify proposed critical habitat.
However, conference procedures may also be used to assist an action
agency in planning a proposed action so that potential conflicts may be
identified and resolved early in the planning process. During the
conference, the Service may provide recommendations on ways to avoid or
minimize adverse effects of the proposed action. The conclusions
reached during a conference and any subsequent recommendations are then
provided to the action agency in a conference report.
The Service issued a conference report to NRCS in connection with
the NRCS's LPCI on June 30, 2011 (http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1044884.pdf), in which the Service determined
that the proposed action, which incorporates the procedures, practice
standards, and conservation measures of the LPCI, is not likely to
jeopardize the continued existence of the lesser prairie-chicken. On
November 22, 2013, the Service issued a conference opinion for the
NRCS's LPCI and associated procedures, conservation practices, and
conservation measures (https://www.fws.gov/southwest/es/Documents/R2ES/LPC_NRCS_CO_FINAL_22Nov2013.pdf).
The November 22, 2013, conference opinion builds upon, refines, and
[[Page 20078]]
updates the 2011 conference report in several ways, including the
addition of 4 conservation practices to the 23 evaluated in the
conference report, the establishment of a new method of determining
when the conservation measures are to be applied, an estimate of
incidental take, and an associated incidental take statement that
covers take of lesser prairie-chicken by cooperators who implement the
described conservation practices and measures.
In the November 22, 2013, conference opinion, the Service states
that implementation of the NRCS conservation practices and their
associated conservation measures described in the conference opinion
are anticipated to result in a positive population response by the
species by reducing or eliminating adverse effects. Furthermore, the
Service states that overwhelming conservation benefits of
implementation of the proposed action within selected priority areas,
maintenance of existing habitat, and enhancement of marginal habitat
will outweigh short-term negative impacts to individual lesser prairie-
chickens. Implementation of the LPCI is expected to result in
management of more of the threats that adversely affect populations,
more habitat under the appropriate management prescriptions, and the
development and dissemination of more information on the compatibility
of sustainable ranching operations and the persistence of this species
across the landscape. Through the conference opinion, the Service
ultimately finds that effective implementation of conservation practice
standards and associated conservation measures for the LPCI are
anticipated to result in a positive population response by the species
as threats are reduced, most notably in addressing habitat
fragmentation and improvement of habitat conditions across the
landscape.
Therefore, this provision of the 4(d) special rule for conservation
practices associated with NRCS's LPCI and related NRCS activities
focused on lesser prairie-chicken conservation will promote
conservation of the species by encouraging landowners and ranchers to
continue managing the remaining landscape in ways that meet the needs
of their operation while simultaneously providing suitable habitat for
the lesser prairie-chicken. By reducing threats to the species
including habitat fragmentation and by promoting the improvement of
habitat conditions across the species' landscape, the LPCI and related
NRCS activities focused on lesser prairie-chicken conservation are
expected to provide for the conservation of the lesser prairie-chicken.
Continuation of Routine Agricultural Practices on Existing Cultivated
Lands
This final 4(d) special rule provides that take of the lesser
prairie-chicken will not be prohibited provided the take is incidental
to activities that are conducted during the continuation of routine
agricultural practices, as specified below, on cultivated lands that
are in row crop, seed-drilled untilled crop, hay, or forage production.
These lands must meet the definition of cropland as defined in 7 CFR
718.2, and, in addition, must have been cultivated, meaning tilled,
planted, or harvested, within the 5 years preceding the proposed
routine agricultural practice that may otherwise result in take. Thus,
this provision does not include take coverage for any new conversion of
grasslands into agriculture.
Lesser prairie-chickens are known to travel from native rangeland
and Conservation Reserve Program lands (CRP), which provide cover types
that support lesser prairie-chicken nesting and brood rearing, to
forage within cultivated fields supporting small grains, alfalfa, and
hay production. Lesser prairie-chickens are also known to maintain lek
sites up to \1/2\ mile (0.8 kilometers) from rangelands and CRP fields
within these cultivated areas, and they may be present during farming
operations. Thus, existing cultivated lands, although not a native
habitat type, may provide food resources for lesser prairie-chickens.
These existing cultivated lands are compatible with the conservation of
the lesser prairie-chicken.
Routine agricultural activities covered by this provision include:
(1) Plowing, drilling, disking, mowing, or other mechanical
manipulation and management of lands.
(2) Routine activities in direct support of cultivated agriculture,
including replacement, upgrades, maintenance, and operation of existing
infrastructure such as buildings, irrigation conveyance structures,
fences, and roads.
(3) Use of chemicals in direct support of cultivated agriculture
when done in accordance with label recommendations.
Similar to the discussion above for conservation practices carried
out in coordination with NRCS, this provision of the 4(d) special rule
for agricultural activities will promote conservation of the species by
encouraging landowners and farmers to continue managing the remaining
landscape in ways that meet the needs of their agricultural operations
while simultaneously providing food resources for the lesser prairie-
chicken. In addition to providing food sources during the species' life
cycle, existing cultivated agricultural land may promote conservation
of the species by discouraging inappropriate agricultural practices
that are incompatible with the lesser prairie-chicken's habitat needs
within the landscape.
Determination
Section 4(d) of the Act states that ``the Secretary shall issue
such regulations as [s]he deems necessary and advisable to provide for
the conservation'' of species listed as a threatened species.
Conservation is defined in the Act to mean ``to use and the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided pursuant to [the] Act are no longer necessary.'' Additionally,
section 4(d) of the Act states that the Secretary ``may by regulation
prohibit with respect to any threatened species any act prohibited
under section 9(a)(1) [of the Act].''
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, the Secretary may find that it
is necessary and advisable not to include a taking prohibition, or to
include a limited taking prohibition. See Alsea Valley Alliance v.
Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, and 2002
U.S. Dist. Lexis 5432 (W.D. Wash. 2002). In addition, as affirmed in
State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988), the rule
need not address all the threats to the species. As noted by Congress
when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to him with regard to the permitted activities for those
species. [S]he may, for example, permit taking, but not importation of
such species,'' or [s]he may choose to forbid both taking and
importation but allow the transportation of such species, as long as
the measures will ``serve to conserve, protect, or restore the species
concerned in accordance with the purposes of the Act'' (H.R. Rep. No.
412, 93rd Cong., 1st Sess. 1973).
Section 9 prohibitions make it illegal for any person subject to
the jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect; or attempt
any of these), import or export,
[[Page 20079]]
ship in interstate commerce in the course of commercial activity, or
sell or offer for sale in interstate or foreign commerce any wildlife
species listed as an endangered species, without written authorization.
It also is illegal under section 9(a)(1) of the Act to possess, sell,
deliver, carry, transport, or ship any such wildlife that is taken
illegally. Prohibited actions consistent with section 9 of the Act are
outlined for threatened species in 50 CFR 17.31(a) and (b). This 4(d)
special rule provides that all of the prohibitions in 50 CFR 17.31(a)
and (b) will apply to the lesser prairie-chicken, except in three
instances.
First, none of the provisions in 50 CFR 17.31 apply to conservation
practices that are conducted by a participant enrolled in, and
operating in compliance with, the Lesser Prairie-Chicken Interstate
Working Group's Lesser Prairie-Chicken Range-Wide Conservation Plan.
The plan reflects a sound conservation design and strategy and is
expected to provide a net conservation benefit for the lesser prairie-
chicken. Actions in the rangewide plan will ultimately contribute to
the conservation of the species. Conservation is defined in section
3(3) of the Act as ``to use and the use of all methods and procedures
which are necessary to bring any endangered species or threatened
species to the point at which the measures provided pursuant to [the]
Act are no longer necessary.'' As a result of this provision, the
Service expects that the conservation actions will provide for the
conservation of the lesser prairie-chicken.
Second, none of the provisions in 50 CFR 17.31 apply to the
conditioned conservation practices that are carried out in accordance
with a conservation plan developed by the NRCS in connection with the
LPCI or any NRCS assistance consistent with the November 22, 2013,
conference opinion. According to the final listing rule, the primary
factors supporting the threatened species status for the lesser
prairie-chicken are the impacts of cumulative habitat loss and
fragmentation. Allowing the continuation of agricultural operations
consistent with these criteria encourages landowners to continue
managing the remaining landscape in ways that meet the needs of their
operation while simultaneously providing suitable habitat for the
lesser prairie-chicken. Implementation of conservation practice
standards and associated conservation measures for the LPCI are
anticipated to result in a positive population response by the species
as threats are reduced, most notably in addressing habitat
fragmentation and improvement of habitat conditions across the
landscape. Therefore, conservation practices carried out consistent
with the LPCI and November 22, 2013, conference opinion will ultimately
contribute to the conservation of the species.
Finally, none of the provisions in 50 CFR 17.31 apply to actions
that result from activities associated with the continuation of routine
agricultural practices, as specified above, on existing cultivated
lands that are in row crop, seed-drilled untilled crop, hay, or forage
production. These lands must meet the definition of cropland as defined
in 7 CFR 718.2, and, in addition, must have been cultivated, meaning
tilled, planted, or harvested, within the previous 5 years. This
provision of the 4(d) special rule for agricultural activities will
promote conservation of the species by encouraging landowners and
farmers to continue managing the remaining landscape in ways that meet
the needs of their operation while simultaneously providing habitat and
food resources for the lesser prairie-chicken.
Based on the rationale explained above, the provisions included in
the 4(d) special rule are necessary and advisable to provide for the
conservation of the lesser prairie-chicken. Nothing in this 4(d)
special rule changes in any way the recovery planning provisions of
section 4(f) of the Act or the consultation requirements under section
7 of the Act, or the ability of the Service to enter into partnerships
for the management and protection of the lesser prairie-chicken.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed 4(d)
special rule for the lesser prairie-chicken during four comment
periods: May 6 to June 20, 2013; July 9 to August 8, 2013; December 11,
2013, to January 10, 2014; and January 29 to February 12, 2014. We also
contacted appropriate Federal, Tribal, State, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed listing rule, proposed 4(d) special rule,
draft rangewide conservation plan, and final rangewide conservation
plan during the respective comment periods.
Over the course of the four comment periods, we received
approximately 56,450 comment submissions. Of these, approximately
56,150 were form letters. All substantive information provided during
these comment periods has either been incorporated directly into this
final rule or is addressed below. Comments from State agencies are
grouped separately.
Comments From States
(1) Comment: In order to ensure proper assessment of recovery goals
and habitat quality, the Service should not endorse or approve any
other plans, permits, or tools that do not follow the same metrics
contained in the rangewide plan.
Our Response: In accordance with section 10 of the Act, the Service
must process any permit application associated with a habitat
conservation plan (HCP). The HCP may include metrics that differ from
the rangewide plan as long as the HCP meets the issuance criteria. If
the issuance criteria in section 10 of the Act are met, then the
Service must issue the permit.
Additionally, we recognize that there may be numerous alternatives
to, or variations of, the rangewide plan that could provide a net
conservation benefit to the species. Regarding the possibility of the
Service endorsing other plans or tools, the Service will assess each of
those as submitted for our review and will evaluate each on the fact-
specific metrics contained in that plan.
(2) Comment: The NRCS provision of the 4(d) special rule should be
expanded to include all actions that are consistent with LPCI.
Our Response: It is our intention that this provision would apply
to any conservation practices consistent with LPCI as well as related
NRCS activities focused on lesser prairie-chicken conservation
consistent with the provisions of the November 22, 2013, conference
opinion that was developed in coordination with the Service. We have
revised the NRCS provision of the 4(d) special rule to clarify that the
provision includes all activities that are carried out in accordance
with a conservation plan providing for lesser prairie-chicken
conservation developed by NRCS in coordination with the Service.
(3) Comment: The 4(d) special rule should more generally cover all
grazing and ranching practices. Landowners who are managing lands
appropriately should not have to sign on to a government plan to
receive protections.
Our Response: We have determined that properly managed grazing is
consistent with conservation of the lesser prairie-chicken. However,
improperly managed grazing can impact lesser prairie-chickens or render
their habitats uninhabitable. By covering landowners participating in
the rangewide plan and NRCS programs in the final 4(d) special rule, we
have ensured that grazing is being conducted
[[Page 20080]]
in a manner compatible with the conservation of the lesser prairie-
chicken. The rangewide plan and NRCS provisions of the 4(d) special
rule address grazing and ranching. Additionally, individuals previously
enrolled in one of the candidate conservation agreements with
assurances (CCAAs), who are implementing their plans accordingly, have
incidental take coverage through the incidental take permit associated
with the CCAA. Individuals who did not choose to participate in the
CCAAs and who do not wish to participate in the rangewide plan or other
Federal conservation programs may pursue a traditional HCP and
associated incidental take permit for their activities.
(4) Comment: The requirement that lands must have been cultivated
in the last 5 years is an unnecessary limitation on the cultivated
lands provision. The provision should cover lands that have been
cultivated in the last 10 years, or that have never been cultivated.
Our Response: The intention of this provision is to allow for
continued agricultural practices on existing cultivated lands, not to
allow for new conversion of grasslands to cultivation. Existing
cultivated lands are of low value to lesser prairie-chickens, although
they may provide food resources for lesser prairie-chickens at some
times. Conversely, lands that have not been cultivated in 5 years or
more may have developed habitat qualities that are of higher value to
lesser prairie-chickens; therefore, the amount of take caused by
conversion back to cultivation may not be insignificant. Generally
speaking, lands that are in continuing agricultural use would not be
rested or remain fallow for more than 4 to 5 years; thus we believe the
5-year limitation best supports the intent of this provision.
(5) Comment: Limitations on cultivation practices (e.g., starting
in the center of a field, use of flush bars) are not ``normal'' farming
practice. This provision needs reconsideration and clarification.
Our Response: Upon further review, we have determined that these
limitations were unnecessary. They were intended to limit the level of
take that would occur on lands subject to routine, continuing
agricultural practices; however, since we already determined that the
take associated with those routine practices would be limited
generally, we have determined that the limitations are unnecessary and
revised the cultivated lands provision accordingly.
(6) Comment: The cultivated lands provision should specifically
note that use of chemicals on cultivated lands is allowed.
Our Response: Use of chemicals as a routine agricultural practice
is covered under the cultivated lands provision. We have revised the
text of the rule to be more precise on this issue.
(7) Comment: The 4(d) special rule should include a provision to
cover activities consistent with the Conservation Reserve Program (CRP)
and incidental take for landowners choosing to remove their lands from
CRP practices.
Our Response: The Service anticipates that incidental take of
lesser prairie-chicken associated with CRP activities, including
returning lands enrolled in CRP to cropland after CRP contract
expiration, will be addressed through section 7 of the Act. In January
2013, the Farm Services Agency engaged the Service in a collaborative
effort to develop a conference opinion to address CRP implementation on
lands occurring within the range of the lesser prairie-chicken. The
conference opinion is intended to evaluate the cumulative landscape-
level effects of CRP implementation on the lesser prairie-chicken,
prescribe conservation measures to avoid or minimize any adverse
effects of CRP implementation, and, if appropriate, provide incidental
take coverage to CRP participants who adhere to the conditions in the
conservation opinion.
Public Comments
(8) Comment: The 4(d) special rule should not preclude or interfere
with the Service's ability to issue section 10 incidental take permits.
Our Response: Nothing in the 4(d) special rule precludes the
Service from continuing to issues permits under the traditional
incidental take permitting tools (e.g., HCPs, safe harbor agreements
(SHAs)).
(9) Comment: The Service has failed to comply with the National
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.).
Our Response: We have determined that environmental assessments and
environmental impact statements, as defined under the authority of
NEPA, need not be prepared in connection with listing a species as an
endangered or threatened species under the Act. We published a notice
outlining our reasons for this determination in the Federal Register on
October 25, 1983 (48 FR 49244). As documented in the Service's
Endangered Species Listing Handbook (Service 1994), it is the position
of the Service that rules promulgated under section 4(d) of the Act
concurrently with listing of the species fall under the same rationale
as outlined in the October 25, 1983, determination; thus preparation of
an environmental assessment for the 4(d) special rule for the lesser
prairie-chicken is not required.
(10) Comment: A rule promulgated pursuant to section 4(d) of the
Act must ``provide for the conservation'' of a species. The Service is
inappropriately relying on a net conservation benefit standard in
developing this 4(d) special rule. A rule with a net conservation
benefit is not the same as a rule promulgated for the conservation of
the species.
Our Response: The Service believes that a net conservation benefit
standard is ``necessary and advisable for the conservation'' of the
lesser prairie-chicken. A net conservation benefit standard allows for
the Service to evaluate the conservation action and determine whether,
overall, the action provides for the conservation of the species. In
other words, the action may have some negative effects to the species
but in combination with the positive effects, the positive outweighs
the negative providing for the conservation of the species overall or a
net conservation benefit.
(11) Comment: The Service has failed to complete a section 7
consultation on the 4(d) special rule.
Our Response: Section 7 consultation on the development of a rule
to list a species under the Act is not required. Under the Act, we are
to base listing decisions on the best available scientific and
commercial information. If a species warrants listing under the Act
based on a review of the best available scientific and commercial
information, the Service must list the species, if not precluded by
other higher priority listing actions. In other words, the Service does
not have discretion to not list a species in consideration of other
information, including the results of a section 7 analysis. This 4(d)
special rule is being promulgated concurrent with the listing of the
species, and by extension, is therefore also not subject to section 7
consultation requirements.
(12) Comment: This Service has not coordinated adequately with
local governments.
Our Response: We have coordinated extensively with the public,
local governments, industry, academia, and other Federal agencies.
Specifically, in accordance with the Act and Service policies and
guidelines, we published legal notices and provided notice to affected
counties. Additionally, we requested written comments from the
[[Page 20081]]
public on the proposed listing of the lesser prairie-chicken and
proposed 4(d) special rule during four comment periods: May 6 to June
20, 2013; July 9 to August 8, 2013; December 11, 2013, to January 10,
2014; and January 29 to February 12, 2014.
(13) Comment: The Service must clarify to which version of the
rangewide plan the 4(d) special rule refers.
Our Response: By using the phrase ``as endorsed by the U.S. Fish
and Wildlife Service'' to describe the rangewide plan, this final 4(d)
special rule provides that take incidental to activities conducted by
participants enrolled in the October 2013 version of WAFWA's ``Lesser
Prairie-Chicken Range-Wide Conservation Plan'' is not prohibited. The
October 2013 version of the rangewide plan was made, and remains,
available on http//www.regulations.gov under Docket No. FWS-R2-ES-2012-
0071 as a supporting material for our January 29, 2014, Federal
Register publication (79 FR 4652).
(14) Comment: The rangewide plan does not contain an effective
strategy to achieve its goals and therefore will not support
conservation of the lesser prairie-chicken.
Our Response: As stated in the October 23, 2013, endorsement
letter, the Service believes the rangewide plan reflects a sound
conservation design and strategy that, when implemented, will provide a
net conservation benefit to the lesser prairie-chicken. To the extent
that there may be uncertainty as to the effectiveness of the strategy,
the plan contains adaptive management provisions that allow flexibility
in its implementation over time to ensure that the plan results in
improvement of the status of the species towards the habitat and
population goals therein.
(15) Comment: Several commenters offered alternative plans and
mitigation strategies to the one in the rangewide plan.
Our Response: We recognize that there may be numerous alternatives
to, or variations of, the rangewide plan that could provide a net
conservation benefit to the species. However, as discussed above, we
have determined that the endorsed rangewide plan provides a net
conservation benefit to the species and is an appropriate provision of
this 4(d) special rule. Regarding the possibility of the Service
endorsing other plans or tools, the Service will assess each of those
as submitted for our review and will evaluate each on the fact-specific
metrics contained in that plan.
(16) Comment: The Service has inappropriately relied on the draft
criteria from its May 6, 2013, proposed 4(d) special rule (78 FR 26302)
to evaluate the rangewide plan. These criteria were never finalized and
relying on them is contrary to the Administrative Procedure Act.
Our Response: On May 6, 2013, the Service proposed criteria that
could be used to evaluate whether a planning effort resulted in a net
conservation benefit to the lesser prairie-chicken (78 FR 26302). We
evaluated the rangewide plan against these criteria and determined that
the rangewide plan would provide a net conservation benefit to the
species. In our December 11, 2013, revised proposed rule (78 FR 75306),
we revised the proposed 4(d) special rule to be specific to the
rangewide plan and published our analysis of net conservation benefit.
In total, we requested written comments from the public on the proposed
4(d) special rule during four comment periods: May 6 to June 20, 2013;
July 9 to August 8, 2013; December 11, 2013, to January 10, 2014; and
January 29 to February 12, 2014. Given that both the criteria and our
analysis of the rangewide plan under the criteria have been made
available for public notice and comment, we believe our actions comply
with the requirements of the Administrative Procedure Act (5 U.S.C.
subchapter II), and we rely on this analysis in our final rule.
(17) Comment: What will the process be for WAFWA to make future
adjustments or modifications to the rangewide plan? If the rangewide
plan is revised, will activities conducted under the plan continue to
be covered by the provisions of the 4(d) special rule?
Our Response: The rangewide plan includes an adaptive management
provision that allows for adjustments based on new information. Changes
are expected to the rangewide plan, as needed, according to that
process. Given that the endorsed plan includes adaptive management and
that changes were contemplated as part of the implementation of the
plan, as long as the new changes are incorporated into the plan, then
the 4(d) special rule will continue to cover the activities of enrolled
participants. Significant modifications to the rangewide plan that are
outside the bounds of the adaptive management provisions of the plan
would require additional review by the Service and may require revision
of the 4(d) special rule.
(18) Comment: The rangewide plan will not result in conservation of
the species because participation in the plan is voluntary. Enrollment,
payment of mitigation fees, implementation of conservation practices,
and implementation of avoidance, minimization, and mitigation measures
are all voluntary.
Our Response: Each participant who chooses to enroll in the
rangewide plan will sign a certificate of participation. This
certificate of participation will outline either the specific
avoidance, minimization, and mitigation measures (for impact
participants) or conservation practices (for offset participants) that
each participant has agreed to implement on his or her lands. The
activities identified in each of these certificates of participation
are not voluntary. In summary, while enrollment in the rangewide plan
is indeed voluntary, implementation of conservation measures is not
voluntary once enrolled.
(19) Comment: Conservation banking, consistent with the Service's
conservation banking guidance, is the only mitigation solution that can
achieve a net conservation benefit to the species with certainty and
long-term accountability.
Our Response: Conservation banking is a tool that can provide a net
conservation benefit to a species by reducing the threat of
fragmentation and habitat loss through perpetual conservation. However,
it is not the only tool available that can achieve a net conservation
benefit to the species with certainty and long-term accountability.
Given the specific biology, life history, and threats facing a species,
many other tools may also be appropriate to offset negative impacts and
provide a net conservation benefit. For example, our experience has
shown that HCPs can provide a net conservation benefit, and not all
HCPs include conservation banking. This is a species-specific
determination based on the threats acting on that species.
(20) Comment: Conservation of lesser prairie-chickens cannot be
achieved through term or temporary mitigation. Short-term offsets in
the form of 5-year contracts are not effective mitigation for permanent
impacts.
Our Response: The rangewide plan is designed to deliver permanent
mitigation for permanent impacts, but, in some cases, the impacts will
be offset through the use of short-term (5-10 year) contracts. Each
acre of impact will be offset by 2 acres of offset, due to the 2-to-1
offset-to-impact ratio in the rangewide plan. These offset acres are
secured through contracts between WAFWA and landowners. Some of the
contracts (up to 75 percent) will be short-term contracts. When a
contract for a short-term offset unit is due to expire, the need to
mitigate the original
[[Page 20082]]
impact does not go away. Rather, WAFWA will offer to extend the
contract, and if the landowner does not wish to extend, WAFWA will find
a new land base to apply those offset contracts. In this way, WAFWA
will maintain the necessary amount of offset units over time, resulting
in permanent mitigation for permanent impacts.
For example, Participant A is an impact participant who has been
assessed 500 acres of impact on his or her enrolled property. WAFWA
will need to secure 1,000 offset acres (due to the 2:1 offset-to-impact
ratio) for the impacts from Participant A. Participant B enrolls 1,000
acres as offset through a short-term 5-year contract (i.e., until the
end of 2020). In 2020, Participant B chooses not to renew the contract.
WAFWA must then find a new 1,000 acres of offset to cover the original
500 acres of impact from Participant A. Participant C signs an
agreement for 1,000 acres for a 10-year contract, which shifts the
offset of Participant A's impact from Participant B to Participant C.
This scenario would repeat itself, as presented in the rangewide plan,
in perpetuity, thus achieving permanent, but not static, mitigation.
(21) Comment: It is not appropriate to use short-term contracts for
restoration because restoration of lesser prairie-chicken habitat may
take many years to be achieved.
Our Response: The rangewide plan recognizes that short-term
contracts may not immediately realize the benefits of restoration
practices. Because of this recognition, contracts for participants
employing restoration practices require a minimum 10-year term.
Furthermore, the calculation of offset credits is based on habitat
quality, which is evaluated annually. Thus, generation of offset
credits on lands under restoration contract is determined based on
annual habitat quality and does not overestimate the contribution of
lands that are still in an improvement phase. In other words, lands
that are in an improvement phase do not count fully toward tallies of
offset acreage.
(22) Comment: In reference to WAFWA and the rangewide plan, the
Federal Government cannot delegate regulatory authority over American
citizens to a foreign government or multinational organization, nor can
the Federal Government commandeer State agencies in an attempt to
regulate the conduct of American citizens.
Our Response: The Service is not attempting to use the rangwide
plan to regulate the public, nor are we attempting to use the rangewide
plan as a vehicle to commandeer State agencies. The rangewide plan is a
voluntary agreement between WAFWA and the participants and is being
administered voluntarily by WAFWA, not under Service regulation. The
plan can provide an alternative to the need to seek an incidental take
permit from the Service in some situations, but is not in itself
regulatory.
(23) Comment: How does WAFWA intend to enforce the rangewide plan?
Our Response: As discussed in the rangewide plan, WAFWA will
conduct compliance monitoring to confirm adherence to the rangewide
plan. Any participant who does not comply with the agreed-upon
avoidance and minimization measures that are appropriate for their
impacts in their signed certificate will receive a notice of non-
compliance from the rangewide plan administrators. This notice will
include a detailed list of measures that the participant must address
and a reasonable timeline in which to address them. If, during the
duration of the agreement, the participant receives a total of three
notices of noncompliance and fails to address those measures within the
allotted timeframe, it will constitute grounds for the termination of
participation and rangewide plan coverage. Participants enrolled on
both sides of the framework (i.e., impacts and offsets) have incentive
to remain enrolled in the plan. Participants enrolled on the impact
side, if terminated, will forfeit any enrollment or mitigation fees
paid and will be then subject to the full take prohibitions of the Act.
Participants enrolled on the offset side, if terminated, will forego
any incentive payments and will also then be subject to the full take
prohibitions of the Act.
(24) Comment: The rangewide plan provision of the 4(d) special rule
represents a radical departure from the Service's historical mitigation
policies and sets a questionable precedent for future conservation
efforts.
Our Response: Section 4(d) of the Act provides an opportunity for
the Service to tailor the necessary conservation measures to a
threatened species. We have concluded that the mitigation framework in
the rangewide plan is an appropriate tool to use as a part of the
conservation strategy for the lesser prairie-chicken.
(25) Comment: The population goals and conservation strategy in the
rangewide plan do not take into account the results of the 2013 lesser
prairie-chicken population surveys.
Our Response: The rangewide plan was in the final stages of
approval when the 2013 survey results were released; thus the final
results are not fully incorporated into the plan. However, the adaptive
management process in the plan allows for future consideration of the
2013 survey data, survey data from subsequent years, and any other
relevant scientific information that may become available over time.
(26) Comment: The confidentiality provisions found in the rangewide
plan are not appropriate or implementable. The confidentiality
provisions will not allow outside parties to monitor the implementation
of the plan. Further, the provisions cannot be implemented as written
due to requirements under the Freedom of Information Act (FOIA; 5
U.S.C. 552, as amended).
Our Response: As discussed in the rangewide plan, WAFWA will allow
access to confidential and sensitive business information only to the
relevant State fish and wildlife agency, the Service, employees or
agents of WAFWA, and the participant that provided the information.
WAFWA will use a password-protected database to maintain this
information so that it can be viewed for relevant monitoring purposes
but not downloaded, possessed, or distributed. This provision was
developed with full recognition of the FOIA requirements of Federal
agencies, thus the careful controls on the content of materials shared
with the Service.
While this system may make monitoring of implementation by outside
entities challenging, it is a necessary provision given the
preponderance of private lands within the range of the lesser prairie-
chicken. This information, limited as it may be, can be more useful
than we would have been able to gather otherwise from private
landowners. Finally, one of the most important pieces of information to
monitor is the overall status of the species in response to rangewide
plan, which will continue to occur through aerial surveys, the results
of which will be shared widely.
(27) Comment: How were the population goals for the lesser prairie-
chicken in the rangewide plan developed?
Our Response: As discussed in the rangewide plan, a science team
under WAFWA's Interstate Working Group was tasked with developing the
population goals. The science team reviewed the available population
information and analyses, and recommended a rangewide population goal
of 67,000 birds as an annual spring average over a 10 year-time frame.
The science team felt that this goal was both attainable and
sustainable considering that the rangewide population had been above
this level as recently as 2006.
[[Page 20083]]
This goal was determined to meet the following population objectives:
Increase populations to ensure a sustainable, long-term
population within each of the four delineated ecoregions for the next
10 years of the rangewide plan's implementation;
Maintain and expand the current distribution of the lesser
prairie-chicken across its estimated occupied range; and
Maintain higher population sizes in areas where lesser
prairie-chickens currently occur and are stable.
(28) Comment: The population goals for the lesser-prairie chicken
in the rangewide plan are too low.
Our Response: The rangewide plan includes a rangewide population
goal of 67,000 birds as an annual spring average over a 10-year time
frame. This means that over the course of 10 years, the average of the
population estimates for each of those 10 years must be at least
67,000. In practice, this means the population estimate needs to
stabilize at or above 67,000 birds, not merely reach it once. Use of a
10-year average as a goal provides a good indicator of the stability of
the population over time because the population numbers can vary widely
from one year to the next naturally based on climatic conditions. The
Service believes the strategy in the rangewide plan, including the
population goals, will provide a net conservation benefit to the
species. The adaptive management provisions in the rangewide plan allow
the population goals to be revised if new science or implementation
monitoring determines that the goals are not sufficient to support
conservation of the lesser prairie-chicken.
(29) Comment: The rangewide plan has a duration of 30 years. What
happens at the end of that period? Can the plan be renewed? Will the
participants need to pursue alternative coverage for incidental take at
that time?
Our Response: The endorsed rangewide plan has a 30-year term. The
rangewide plan notes that ``at the end of the term, the [rangewide
plan] Administrator may apply to the [Service] to renew the [rangewide
plan] and any associated permits or [certificates of participation].
The [rangewide plan] Administrator will apply for a renewal at least 30
days prior to the expiration of the [rangewide plan]. The [rangewide
plan] Administrator and Participants may continue the activities
authorized by the [rangewide plan] until the Service acts on the
application for renewal. If approved, any assurances and permit
language agreed to at the time of the renewal request will be honored
by the [Service]. The [Service] may also deny renewal of the [rangewide
plan] or have the option of terminating it.'' In the event that the
rangewide plan is not renewed, at the time of the rangewide plan's
expiration, participants in the plan would no longer be exempt from the
general take prohibition of 50 CFR 17.31 and 50 CFR 17.32.
(30) Comment: The 4(d) special rule should be revised to include
periodic review of the performance of the rangewide plan by the Service
and the ability to modify or revoke the rangewide plan provision of the
4(d) special rule if the implementation of the rangewide plan is not
achieving its conservation goals.
Our Response: The Service believes that the rangewide plan
establishes appropriate measures to evaluate whether the conservation
efforts are proceeding as planned. Those measures include establishing
committees that will monitor the implementation effort, of which the
Service will be a member. Further, the Service has the discretion to
revise or remove the 4(d) special rule at any time if it is determined
that the rangewide plan is no longer meeting the intent of the
regulation.
(31) Comment: Harvest of native grass hay crop should be
specifically covered under the 4(d) special rule.
Our Response: The Service believes that a blanket provision under
the 4(d) special rule for native grass hay crop would not support the
conservation of the lesser prairie-chicken. Areas of native grass can
and do support the life-history needs of the lesser prairie-chicken.
Unmitigated harvest of these areas is likely to result in continued
range reductions and decline in the status of the species. As a result,
this activity is better addressed through the rangewide plan, an
incidental take permit, or another mechanism designed to offset the
threats from these activities through compensatory mitigation.
(32) Comment: The Service should reassess the definition of
cultivated lands to further clarify or expand it to include ``seed-
drilled untilled crop.''
Our Response: We have clarified the description of cultivated lands
in this final 4(d) special rule and preamble to specifically include
seed-drilled untilled crop production (e.g., wheat).
(33) Comment: The Service should clarify what it means by
``cultivated . . . within the previous 5 years.''
Our Response: When referring to lands that have been cultivated
with the previous 5 years, the Service intends that the cultivated
lands provision should only apply to lands that have been cultivated
within the 5 years prior to the action occurring that may otherwise
result in take of the lesser prairie-chicken. For example, if a
landowner wished to cultivate lands in 2020, those lands must have been
cultivated at some point between 2015 and 2020 in order to be covered
by this 4(d) special rule. This results in a ``rolling'' 5-year time
period for applicability of this 4(d) special rule.
(34) Comment: The Service should clarify which activities are
allowed under the cultivated lands provision.
Our Response: The Service intends that all routine activities in
support of existing agricultural practices within the footprint of
existing developments are allowed under this provision, including
actual management of cultivated lands and maintenance of infrastructure
to support the agricultural practices. The text of the rule has been
revised to clarify this.
(35) Comment: Comments were submitted both for and against
inclusion of provisions in the 4(d) special rule for:
Criteria that would allow approval of plans completed in
the future;
Direct hunting of lesser prairie-chickens;
Continued enrollment in candidate conservation agreements
with assurances (CCAAs); and
Incidental take when in accordance with applicable State
law for education or scientific purpose, the enhancement of propagation
or survival of the species, zoological exhibition, and other
conservation purposes consistent with the Act.
Our Response: We solicited and considered public comment on the
inclusion of these provisions. We have determined that it is not
necessary to include such provisions in the final 4(d) special rule, as
the suite of provisions currently included in the 4(d) rule, in
combination with other ongoing conservation efforts, appropriately
supports the conservation of the species.
(36) Comment: The Service should include provisions in the 4(d)
special rule for any other comprehensive plans that provide a net
conservation benefit to the lesser prairie-chicken, similar to WAFWA's
rangewide plan.
Our Response: There are several other comprehensive plans in
development that may be determined in the future to support
conservation of the lesser prairie-chicken; however, these efforts are
not far enough along in the development process to be considered under
the 4(d) special rule at this time.
(37) Comment: The 4(d) special rule should include provisions
allowing incidental take of lesser prairie-chickens as a result of
development and operation of oil and gas production and wind energy
generation facilities.
[[Page 20084]]
Incidental take from these operations does not present a risk to the
species.
Our Response: The 4(d) special rule includes provisions for
development and operation of oil and gas production and wind energy
generation through the mitigation framework in the rangewide plan. The
Service does not believe that blanket provisions under a 4(d) special
rule for these sectors would support conservation of the species. These
activities are two of the primary threats to the lesser prairie-chicken
into the future (see the final listing rule published elsewhere in
today's Federal Register), and continued unmitigated impacts are likely
to result in an additional decline in the status of the species. As a
result, these sectors are better addressed through the rangewide plan,
an incidental take permit, or another mechanism designed to offset the
threats from these activities through compensatory mitigation.
(38) Comment: A provision should be developed in the 4(d) special
rule that would serve to exempt or ``grandfather'' projects that are
pending or otherwise in progress.
Our Response: While we recognize that the period following the
listing of a species can be challenging with regards to incidental take
coverage, we do not believe that such a blanket provision would support
the conservation of the lesser prairie-chicken. The rangewide plan
provision of the 4(d) special rule provides a mechanism for exempting
take for many ongoing activities, and WAFWA is actively enrolling
participants as of the time of listing.
Required Determinations
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244). It is the position of the Service that rules promulgated under
section 4(d) of the Act concurrently with listing of the species fall
under the same rationale as outlined in the October 25, 1983,
determination.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
By letter dated April 19, 2011, we contacted known tribal
governments throughout the historical range of the lesser prairie-
chicken. We sought their input on our development of a proposed rule to
list the lesser prairie-chicken and encouraged them to contact the
Oklahoma Ecological Services Field Office if any portion of our request
was unclear or to request additional information. We did not receive
any comments regarding this request. We continued to keep tribal
governments informed by providing notifications of each new or reopened
public comment period, including those specifically pertaining to the
4(d) special rule, and requesting their input. We did not receive any
requests or comments as a result of our request.
References Cited
A complete list of all references cited in this rule is available
on the Internet at http://www.regulations.gov under Docket No. FWS-R2-
ES-2012-0071 or upon request from the Field Supervisor, Oklahoma
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this rule are the staff members of the
Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.41 by adding paragraph (d) to read as follows:
Sec. 17.41 Special rules--birds.
* * * * *
(d) Lesser prairie-chicken (Tympanuchus pallidicinctus). (1)
Prohibitions. Except as noted in paragraphs (d)(2)(i) through (iii) of
this section, all prohibitions and provisions of Sec. Sec. 17.31 and
17.32 apply to the lesser prairie-chicken.
(2) Exemptions from prohibitions. Incidental take of the lesser
prairie-chicken will not be considered a violation of section 9 of the
Act if the take occurs:
(i) On privately owned, State, or county land from activities that
are conducted by a participant enrolled in, and operating in compliance
with, the Lesser Prairie-Chicken Interstate Working Group's Lesser
Prairie-Chicken Range-Wide Conservation Plan, as endorsed by the U.S.
Fish and Wildlife Service.
(ii) On privately owned agricultural land from the following
conditioned conservation practices that are carried out in accordance
with a conservation plan providing for lesser prairie-chicken
conservation developed by the U.S. Department of Agriculture's Natural
Resources Conservation Service in coordination with the U.S. Fish and
Wildlife Service:
(A) Upland wildlife habitat management;
(B) Prescribed grazing;
(C) Restoration and management of rare and declining habitats;
(D) Access control;
(E) Forage harvest management;
(F) Prescribed burning;
(G) Brush management;
(H) Firebreaks;
(I) Cover crops;
(J) Critical area planting;
(K) Forage and biomass planting;
(L) Range planting;
(M) Watering facilities;
(N) Spring development;
(O) Pumping plants;
(P) Water wells;
(Q) Pipelines;
(R) Grade stabilization structures;
[[Page 20085]]
(S) Fences;
(T) Obstruction removal;
(U) Herbaceous weed control;
(V) Ponds;
(W) Tree and shrub planting;
(X) Heavy use protection;
(Y) Woody residue treatment;
(Z) Well decommissioning;
(AA) Conservation cover.
(iii) As a result of the continuation of routine agricultural
practices, as specified below, on cultivated lands that are in row
crop, seed-drilled untilled crop, hay, or forage production that meet
the definition of cropland at 7 CFR 718.2, and, in addition, must have
been cultivated, meaning tilled, planted, or harvested, within the 5
years preceding the proposed routine agricultural practice that may
otherwise result in take. Activities covered by this provision include:
(A) Plowing, drilling, disking, mowing, or other mechanical
manipulation and management of lands in cultivation.
(B) Routine activities in direct support of cultivated agriculture,
including replacement, upgrades, maintenance, and operation of existing
infrastructure such as buildings, irrigation conveyance structures,
fences, and roads.
(C) Use of chemicals in direct support of cultivated agriculture
when done in accordance with label recommendations.
* * * * *
Dated: March 23, 2014.
Daniel M. Ashe,
Director, U. S. Fish and Wildlife Service.
[FR Doc. 2014-07298 Filed 4-9-14; 8:45 am]
BILLING CODE 4310-55-P