SUPPLEMENTARY INFORMATION:

Section 9 of the ESA and its implementing regulations prohibit the “take” of animal species listed as endangered or threatened (16 U.S.C. 1538). Take is defined under the ESA as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect [listed animal species], or to attempt to engage in such conduct” (16 U.S.C. 1532). However, under section 10(a) of the ESA, we may issue permits to authorize incidental take of listed species. “Incidental take” is defined by the ESA as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity (16 U.S.C. 1539). Regulations governing incidental take permits for endangered and threatened species, respectively, are found in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Applicant's Proposed Project

The applicant requests a 20-year ITP to take two covered species, the endangered Karner blue butterfly and the frosted elfin (should it become federally listed in the future). The applicant determined that unavoidable take is reasonably certain to occur incidental to the proposed construction of 2.7 miles of trail and routine property maintenance and management activities that will affect approximately 1.94 acres (ac) of occupied or suitable habitat for the covered species.

The conservation program in the applicant's proposed HCP is designed to avoid, minimize, and mitigate the impacts of covered activities on the covered species, and is intended to complement ongoing conservation efforts for the covered species in New York State. The HCP proposes establishment and ongoing maintenance of approximately 6 ac of wild blue lupine to increase breeding and foraging habitat for the covered species to offset the anticipated impacts of the taking.

National Environmental Policy Act

The issuance of an ITP is a Federal action that triggers the need for compliance with NEPA (42 U.S.C. 4321 et seq.). The Service has made a preliminary determination that the impact of the covered actions and the incidental take likely to result from the applicant's project, including expansion of the existing trail system, routine property maintenance and management activities, and the proposed conservation program, would individually and cumulatively have a minor or negligible effect on the Karner blue butterfly, the frosted elfin, and the environment. Therefore, we have preliminarily concluded the covered actions and incidental take which may occur under this proposed HCP, if implemented, qualifies as “low effect,” and therefore our issuance of the requested ITP authorizing the take would be categorically excluded from further review under our NEPA regulations at 43 CFR 46.205 and 46.210. A low-effect ITP is one in which covered actions and incidental take in accordance with the HCP would result in (1) minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) minor or negligible effects on other environmental values or resources; and (3) impacts that, when considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not over time result in significant cumulative effects to environmental values or resources.

Next Steps

The Service will evaluate the application and the comments received to determine whether the permit application meets the requirements of section 10(a) of the ESA (16 U.S.C. 1531 et seq.). We will also conduct an intra-Service consultation pursuant to section 7 of the ESA to evaluate the effects of the proposed take. After considering the above findings, we will determine whether the permit issuance criteria of section 10(a)(l)(B) of the ESA have been met. If met, the Service will issue the requested ITP to the applicant.

Request for Public Comments

The Service invites the public to comment on the proposed HCP and draft environmental action statement during a 30-day public comment period (see DATES ). You may submit comments by one of the methods shown under ADDRESSES .

Public Availability of Comments

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can request in your comment that we 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.

Authority

The Service provides this notice under section 10(c) of the ESA (16 U.S.C. 1539(c)) and NEPA regulation 40 CFR 1506.6.

85 FR 49391