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

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

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 .

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.

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.

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 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).