[Federal Register Volume 77, Number 13 (Friday, January 20, 2012)]
[Pages 2993-2996]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-830]



Fish and Wildlife Service

[FWS-R2-ES-2011-N254; FXES11120200000F2-112-FF02ENEH00]

Final Environmental Impact Statement and Record of Decision on 
Oncor Electric Delivery Company's Habitat Conservation Plan for 100 
Texas Counties

AGENCY: Fish and Wildlife Service, Department of the Interior.

ACTION: Notice of availability.


SUMMARY: We, the U.S. Fish and Wildlife Service, make available the 
final environmental impact statement (EIS), and final record of 
decision under the National Environmental Policy Act of 1969 analyzing 
the impacts of the issuance of an incidental take permit for 
implementation of the final Oncor Electric Delivery LLC's Habitat 
Conservation Plan (HCP). Our decision is to issue a 30-year incidental 
take permit to Oncor for implementation of the preferred alternative 
(described below), which authorizes incidental take of animal species 
and impacts to plant species listed under the Endangered Species Act of 
1973, as amended. Oncor has agreed to implement avoidance, 
minimization, and mitigation measures to offset impacts to these 
species, as described in their HCP.

DATES: We will issue a final permit no sooner than 30 days after 
publication of this notice. Comments on the final EIS and HCP will be 
accepted until February 21, 2012.

ADDRESSES: For where to review documents and submit comments, see 
Reviewing Documents and Submitting Comments in SUPPLEMENTARY 

FOR FURTHER INFORMATION CONTACT: Mr. Adam Zerrenner, Field Supervisor, 
U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 200, Austin, 
TX 78758 or (512) 490-0057.

SUPPLEMENTARY INFORMATION: We, the Service, announce the availability 
of the final environmental impact statement (EIS) and record of 
decision (ROD), which we developed in compliance with the agency 
decision-making requirements of the National Environmental Policy Act 
of 1969, as amended (NEPA), as well as the final Oncor Electric 
Delivery LLC (Oncor) Habitat Conservation Plan (HCP) as submitted by 
the applicant. All alternatives have been described in detail, 
evaluated, and analyzed in our December 2011 final EIS and Oncor's HCP. 
The ROD documents the rationale for our decision.
    Based on our review of the alternatives and their environmental 
consequences as described in our final EIS, we have selected 
Alternative 1, the proposed HCP. The proposed action is to issue Oncor 
an incidental take permit (ITP) under section 10(a)(1)(B) of the 
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.) that authorizes incidental take of animal species and impacts to 
plant species. The term of the permit is 30 years (2012-2042), and it 
would include the following species that are endangered and threatened 
(also referred to as ``covered species''):


Large-fruited sand-verbena (Abronia macrocarpa)
Texas poppy-mallow (Callirhoe scabriuscula)
Navasota ladies'-tresses (Spiranthes parksii)
American burying beetle (Nicrophorus americanus)
Houston toad (Bufo houstonensis)
Whooping crane (Grus americana)
Golden-cheeked warbler (Dendroica chrysoparia)
Black-capped vireo (Vireo atricapilla)
Red-cockaded woodpecker (Picoides borealis)


Pecos sunflower (Helianthus paradoxus)
Louisiana black bear (Ursus americanus luteolus)
    Take of listed plant species is not defined in the Act, although 
the Act does identify several prohibitions. However, because covered 
species in the Oncor HCP include both plants and animals, in the 
following discussion we use the term ``incidental take'' when 
discussing impacts to covered plants, as well as actual incidental take 
of covered animals.
    Oncor will implement avoidance, minimization, and mitigation 
measures to offset impacts to covered species according to their HCP. 
For all but the whooping crane, impacts will be mitigated through 
purchase of mitigation credits from a Service-approved conservation 
bank, purchasing high-quality habitat near the impact area, or if 
purchase of land is not a viable mitigation option (e.g., mitigation 
necessary to offset impacts does not generate sufficient funds to 
purchase a reasonable amount of land to support the conservation of the 
species), additional options will be explored with the Service as 
described in the HCP. Within 1 mile of confirmed or potentially 
suitable stopover habitat for

[[Page 2994]]

the whooping crane, Oncor will (1) mark all new transmission lines with 
bird flight diverters, (2) place transmission or distribution lines 
underground, or (3) relocate or remove transmission or distribution 
lines. Additionally, existing transmission or distribution lines within 
1 mile of confirmed or potentially suitable stopover habitat will also 
be marked with bird flight diverters, equal to the number of new lines 
constructed that require marking with bird flight diverters.


    Oncor applied to the Service for an ITP. As part of the permit 
application, Oncor developed the HCP to meet the requirements of an 
ITP. Our issuance of an ITP and implementation of the HCP allow Oncor 
to incidentally take the covered species during construction, 
operation, and maintenance of various facilities (e.g., electric 
transmission and distribution lines), as well as during emergency 
response work (covered activities). The proposed plan area is 100 of 
Oncor's 102-county service area, excluding Travis and Williamson 
counties, where any impacts to listed species will be authorized under 
existing permits (see map 1-1 in the HCP). The proposed covered area 
includes any area within Oncor's service area where covered activities 
are expected to affect listed species during the 30-year ITP term.
    The Secretary of the Interior has delegated to the Service the 
authority to approve or deny an ITP in accordance with the Act. To act 
on Oncor's permit application, we must determine that the HCP meets the 
issuance criteria specified in the Act and in the Code of Federal 
Regulations (CFR) at 50 CFR 17.22 and 17.32. The issuance of an ITP is 
a Federal action subject to NEPA compliance, including the Council on 
Environmental Quality Regulations for Implementing the Procedural 
Provisions of NEPA (40 CFR 1500-1508).
    On July 15, 2011, we issued a draft EIS and requested public 
comment on our evaluation of the potential impacts associated with 
issuance of an ITP for implementation of the HCP and to evaluate 
alternatives, along with the draft HCP (76 FR 41808). We included 
public comments and responses associated with the draft EIS and draft 
HCP in the final EIS.

Purpose and Need

    The purpose of the section 10(a)(l)(B) permit is to authorize 
incidental take associated with the covered activities described above. 
We identified key issues and relevant factors through public scoping, 
working with other agencies and groups, and comments from the public. 
We received responses from three Federal agencies and one State agency. 
The National Park Service had no comment, the Environmental Protection 
Agency had ``no objections'' to implementation of the preferred 
alternative, and the Federal Aviation Administration encouraged Oncor 
to coordinate with them on any projects that would affect navigable 
airspace (Federal Aviation Regulations Part 77). Texas Parks and 
Wildlife Department (TPWD) had more substantive comments, including 
requesting clarification regarding how mitigation would be implemented, 
a request to be included on any committees formed to determine 
mitigation strategies, the control of invasive species, covering 
additional rare species within the action area, and obtaining any 
necessary permits from TPWD for State-listed species. The Service 
believes these comments are addressed and reasonably accommodated in 
the final documents. No new significant issues arose following 
publication of the draft documents.


    We considered three alternatives in the EIS.
    Alternative 1--Preferred Alternative: Our selected alternative is 
the proposed HCP with a 30-year term, and the preferred alternative 
(Alternative 1) as described in the final EIS, which provides for the 
issuance of an ITP to Oncor for incidental take of the covered species 
that is anticipated to occur as a result of covered activities. This 
alternative includes the implementation of measures to avoid, minimize, 
and mitigate (mitigation measures described above) impacts from the 
potential incidental take to the maximum extent practicable. This 
alternative also provides conservation measures for covered species and 
the mechanism for streamlined compliance with the Act.
    No Action Alternative: Under the No-Action Alternative, the Service 
would not issue an incidental take permit for a programmatic HCP. 
Instead, Oncor would seek an individual section 10(a)(1)(B) incidental 
take permit, or coverage under a section 7 consultation where a Federal 
nexus (authorized by a Federal agency [e.g., section 404 permit under 
the Clean Water Act]) exists, on a project-by-project basis over the 
next 30 years if activities could result in incidental take of any 
federally listed species within the proposed permit area.
    Alternative 2 (50-year permit duration): Under this alternative the 
permit duration would be 50 years, rather than 30. The covered 
activities, proposed permit area, and covered species would be the same 
as the preferred alternative. The avoidance and minimization discussed 
in the proposed HCP would be the same, but the additional 20-year 
duration would likely result in a greater amount of incidental take.


    We intend to issue an ITP allowing Oncor to implement the preferred 
alternative (Alternative 1), as it is described in the final EIS. Our 
decision is based on a thorough review of the alternatives and their 
environmental consequences. Implementation of this decision entails the 
issuance of the ITP, including all terms and conditions governing the 
permit. Implementation of this decision requires adherence to all of 
the minimization and mitigation measures specified in the HCP, as well 
as monitoring and adaptive management measures.

Rationale for Decision

    We have selected the preferred alternative (Alternative 1) for 
implementation based on multiple environmental and social factors, 
including potential impacts and benefits to covered species and their 
habitat, the extent and effectiveness of avoidance, minimization, and 
mitigation measures, and social and economic considerations. We did not 
choose the No Action Alternative because, as compared with the 
preferred alternative, a project-by-project approach for complying with 
the Act would be more time-consuming and less efficient, and would 
result in piecemeal mitigation incapable of providing comprehensive or 
comparable net benefits to covered species. While Alternative 2 would 
result in a greater amount of mitigation, it was not chosen because of 
the uncertainties associated with planning and implementation over such 
an extended duration, 50 years, which would likely result in the need 
to modify or amend the permit, resulting in inefficiencies and limiting 
the effectiveness of the HCP.
    In order to issue an ITP, we must ascertain that the HCP meets the 
issuance criteria set forth in 16 U.S.C. 1539(a)(2)(A) and (B). We have 
made that determination based on the criteria summarized below:
    1. The taking will be incidental. We find that the take will be 
incidental to otherwise lawful activities, including the proposed 
construction, operation, and maintenance of various facilities (e.g., 
electric transmission and distribution lines), as well as emergency

[[Page 2995]]

response work. The take of individuals of the covered species will be 
primarily due to the indirect impacts of habitat destruction and/or 
    2. The applicant will, to the maximum extent practicable, minimize 
and mitigate the impacts of such takings. Oncor has committed to a wide 
variety of conservation measures and other strategies designed to avoid 
and minimize harm to the covered species, including monitoring and 
adaptive management, and will mitigate for any unavoidable loss through 
purchase of conservation credits and/or land acquisition. The 
mitigation will be commensurate with the actual level of take. In 
addition, Oncor has included provisions for changed circumstances that 
are reasonably foreseeable during the term of the permit. These 
strategies will ensure that impacts from the proposed taking are 
minimized and mitigated to the maximum extent practicable. Mitigation 
will be in place prior to occurrence of the take (i.e., construction 
through habitat).
    3. The applicant will develop an HCP and ensure that adequate 
funding for the HCP will be provided. Oncor has developed and will 
implement their HCP. Section 6 of the HCP describes avoidance and 
minimization measures, including conservation measures and best 
management practices that will be written into project descriptions and 
budgets. These are standard practices and expenses that Oncor funds on 
all of their existing projects. It also describes the mitigation Oncor 
has agreed to undertake for unavoidable impacts that will be provided 
prior to occurrence of anticipated take (i.e., construction through 
    The Service's no surprises assurances are discussed in the HCP and 
measures to address changed circumstances have been identified. 
Adaptive management will be used to direct changes to conservation, 
mitigation, or management measures and monitoring when needed. 
Unforeseen circumstances would be addressed through the Service's close 
coordination with Oncor in the implementation of the HCP, and Oncor has 
committed to a coordination process to address such circumstances. We 
have, therefore, determined that Oncor's financial commitment and plan, 
along with their willingness to address changed and unforeseen 
circumstances in a cooperative fashion, is sufficient to meet this 
    If needed, Oncor will arrange for an unconditional irrevocable 
stand-by letter of credit to be issued to the Service in the amount of 
the expected mitigation cost, as calculated in Section 6 of the HCP 
that will be issued by a nationally recognized banking institution 
acceptable to the Service with an expiration date that extends through 
the expected completion date of the mitigation measures.
    4. The taking will not appreciably reduce the likelihood of the 
survival and recovery of any listed species in the wild. As the Federal 
action agency considering whether to issue an ITP to Oncor, we have 
reviewed the proposed action under section 7 of the Act. Our biological 
opinion, dated January 5, 2012, concluded that issuance of the ITP will 
not jeopardize the continued existence of the covered species in the 
wild. No areas designated as critical habitat for the Houston toad or 
whooping crane are expected to be affected. The biological opinion also 
analyzes other listed species within the planning area and concludes 
that the direct and indirect effect of the issuance of the ITP will not 
appreciably reduce the likelihood of survival and recovery of other 
listed species or adverse modification of any designated critical 
habitat within the permit area.
    5. The applicant agrees to implement other measures that the 
Service requires as being necessary or appropriate for the purposes of 
the HCP. We have assisted Oncor in the development of the HCP. We 
commented on draft documents, participated in numerous meetings and 
conference calls, and worked closely with Oncor during every step of 
plan and document preparation, so that conservation of the covered 
species would be assured and recovery would not be precluded by the 
covered activities. The HCP incorporates our recommendations for 
minimization and mitigation of impacts, as well as steps to monitor the 
effects of the HCP and ensure success. Annual monitoring, as well as 
coordination and reporting mechanisms, have been designed to ensure 
that changes in conservation measures can be implemented if proposed 
measures prove ineffective (adaptive management) or impacts exceed 
estimates (changed circumstances). It is our position that no 
additional measures are required to implement the intent and purpose of 
the HCP to those detailed in the HCP and its associated ITP.
    We have determined that the preferred alternative best balances the 
protection and management of habitat for covered species, while 
allowing and providing a streamlined process for compliance with the 
Act for continued construction, operation, and maintenance of electric 
facilities within Oncor's service area. Considerations used in this 
decision include whether (1) mitigation will benefit the covered 
species; (2) mitigation lands will be managed for the species in 
perpetuity; (3) other conservation measures will protect and enhance 
habitat; (4) mitigation measures for the covered species will fully 
offset anticipated impacts to the species and provide recovery 
opportunities; and (5) the HCP is consistent with the covered species' 
recovery plans.
    A final permit decision will be made no sooner than 30 days after 
the publication of this notice of availability and completion of the 
record of decision.

Reviewing Documents and Submitting Comments

    You may obtain copies of the final EIS, final ROD, and final HCP by 
going to http://www.fws.gov/southwest/es/AustinTexas/. Alternatively, 
you may obtain compact disks with electronic copies of these documents 
by writing to Mr. Adam Zerrenner, Field Supervisor, U.S. Fish and 
Wildlife Service, 10711 Burnet Road Suite 200, Austin, TX 78758; 
calling (512) 490-0057; or faxing (512) 490-0974. A limited number of 
printed copies of the final EIS and final HCP are also available, by 
request, from Mr. Zerrenner. Copies of the final EIS and final HCP are 
also available for public inspection and review at the following 
locations (by appointment only):
     Department of the Interior, Natural Resources Library, 
1849 C. St. NW., Washington, DC 20240.
     U.S. Fish and Wildlife Service, 500 Gold Avenue SW., Room 
6034, Albuquerque, NM 87102.
     U.S. Fish and Wildlife Service, 10711 Burnet Road, Suite 
200, Austin, TX 78758.
    Persons wishing to review the application may obtain a copy by 
writing to the Regional Director, U.S. Fish and Wildlife Service, P.O. 
Box 1306, Room 6034, Albuquerque, NM 87103. Written comments may be 
submitted to Mr. Adam Zerrenner (see above).

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. 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

[[Page 2996]]

cannot guarantee that we will be able to do so. We will not consider 
anonymous comments. 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.


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

    Dated: December 28, 2011.
David C. Mendias,
Acting Regional Director, Region 2, Albuquerque, New Mexico.
[FR Doc. 2012-830 Filed 1-19-12; 8:45 am]