SUPPLEMENTARY INFORMATION:

We, the U.S. Fish and Wildlife Service (Service), announce the availability of documents related to an application for an incidental take permit (ITP) under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.). The Nebraska Public Power District (NPPD) is applying for a 50-year permit associated with incidental take of the American burying beetle ( Nicrophorus americanus; ABB) during construction, operation, and maintenance of a new transmission line in central Nebraska (known as the R-Project). NPPD submitted an application for an ITP covering the take of ABB to the Service. If granted, the ITP would authorize incidental take of ABB resulting from the revised HCP's covered activities, as well as incidental take resulting from activities carried out as part of the revised HCP's conservation strategy. We invite comment on the documents from the public and local, State, Tribal, and Federal agencies.

Background

Section 9 of the ESA and Federal regulations prohibit the taking of a species listed as endangered or threatened. The ESA defines “take” to mean to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. We may issue permits, under limited circumstances, to take listed species incidental to, and not the purpose of, otherwise lawful activities. Section 10(a)(1)(B) of the ESA and its implementing regulations (50 CFR 17.22(b) and 17.32(b)) provide for authorizing incidental take of listed species. Issuance of an ITP also must not jeopardize the existence of federally listed fish, wildlife, or plant species, pursuant to section 7 of the ESA and 50 CFR 402.02. The permittee would receive assurances under our “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).

The Service issued a Federal Register notice of availability for the original ITP application, final habitat conservation plan (final HCP), and final environmental impact statement (final EIS) for the R-Project on February 8, 2019 (84 FR 2900) and issued the ITP on June 12, 2019. However, on June 17, 2020, the U.S. District Court for the District of Colorado issued a decision on a lawsuit challenging the Service's decision to issue this ITP under the ESA, the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), and the National Historic Preservation Act (16 U.S.C. 470) ( Oregon-California Trails Association v. Walsh, 1:19 cv 01945-WJM, D. Colo 2020). In its ruling, the Court vacated and remanded the ITP to the Service for further proceedings consistent with the Court's order. In response to the Court vacating the ITP, NPPD prepared the R-Project Transmission Line Revised Habitat Conservation Plan (revised HCP) and submitted the ITP application. We published a Federal Register notice of intent to prepare a SEIS for the R-Project revised HCP on November 18, 2022 (87 FR 69294).

The Service has prepared a draft SEIS to address the issues identified by the Court and to address new information and changed circumstances, as relevant, to the R-Project revised HCP and ITP application proposed by NPPD. The ITP application submitted by NPPD addresses the potential take of ABB associated with the revised HCP's covered activities associated with the R-Project.

Project Information

The R-Project is a proposed 226-mile transmission line that would start at NPPD's Gerald Gentleman Substation near Sutherland, Nebraska; go north to a 345-kV substation located in Thomas County near Thedford; and then extend eastward to another 345-kV substation sited in Holt County, and interconnect with Western Area Power Administration's existing Fort Thompson-to-Grand Island 345-kV line that is located on the eastern border of Holt County, Nebraska.

The ITP, if issued, would authorize take of the ABB that may occur incidental to the covered activities, which include components of the construction, operation, and maintenance of the R-Project and implementation of the revised HCP's conservation strategy. The revised HCP describes the covered activities, the anticipated impacts to ABB from the covered activities, and the measures that NPPD will implement to minimize and mitigate such impacts. The revised HCP also includes avoidance and minimization measures for ESA-listed species that are not covered species but may be present in the revised HCP Study Area ( i.e., ESA-listed species for which incidental take is not being requested because take will be avoided). The revised HCP also describes the environmental setting and biological resources present in the study area, the biological goals and objectives of the revised HCP, monitoring, adaptive management, and funding assurances.

National Environmental Policy Act Background

The potential issuance of the ITP is considered a Federal action under NEPA, and we determined that preparation of a supplemental EIS to analyze the potential impacts on the human (biological, physical, social, and economic) environment caused by the R-Project and implementation of the revised HCP was appropriate. The Draft SEIS also addresses the issues identified in the court remand issued on June 17, 2020. We prepared the Draft SEIS in accordance with the requirements of NEPA, with input from cooperating organizations and agencies, including History Nebraska, the Nebraska Game and Parks Commission, the National Park Service, the U.S. Army Corps of Engineers, and the U.S. Environmental Protection Agency. We analyzed four alternatives in the draft SEIS, including the issuance of the ITP and implementation of the revised HCP (proposed action), a no action alternative, and two action alternatives. The action alternatives include construction of the R-Project and implementation of the HCP, with the following modifications: Alternative A reflects the proposed action from the final HCP and FEIS, and Alternative B reflects the use of steel monopole construction only. ( printed page 9173)

We are seeking public input on the NEPA analysis in the Draft SEIS, including the associated impacts of the alternatives, as well as comments on the draft revised HCP submitted with the ITP application. We will respond to all substantive comments received during the comment period in the Final Supplemental EIS. No sooner than 30 days after the Final SEIS publication, we will issue a NEPA Record of Decision (ROD).

Public Availability of Comments

You may submit your comments and materials by one of the methods listed in ADDRESSES . Before including your address, phone number, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—might be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.

Comments and materials we receive, as well as supporting documentation we use in preparing the DEIS, will be available for public inspection online in Docket No. FWS-R6-ES-2014-0048, at https://www.regulations.gov/​.)

Next Steps and Decision To Be Made

We will make a permit decision based on the statutory and regulatory criteria of the ESA. This decision will also be informed by the data, analyses, and findings in the EIS and public comments received on the Draft SEIS and HCP. We will document our determinations in an ESA section 10 findings document, ESA section 7 biological opinion, and NEPA ROD developed at the conclusion of the ESA and NEPA compliance processes. If we find that all requirements for issuance of the ITP are met, we will issue the requested permit, subject to terms and conditions deemed necessary or appropriate to carry out the purposes of ESA Section 10.

Authority

We provide this notice under section 10(c) of the ESA (16 U.S.C. 1531 et seq.) and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA (42 U.S.C. 4321 et seq.) and its implementing regulations (40 CFR 1506.6 and 43 CFR 46.305).

89 FR 9171