[Federal Register Volume 60, Number 27 (Thursday, February 9, 1995)] [Notices] [Pages 7785-7786] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-3244] ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Fish and Wildlife Service Availability of a Habitat Conservation Plan, Environmental Assessment, and Receipt of an Application for an Incidental Take Permit of Desert Tortoise Related to the Use of the Tuacahn School and Performing Arts Center Access Road, Ivins, Washington County, Utah AGENCY: Fish and Wildlife Service, Interior. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: Heritage Arts Foundation (Applicant) has applied to the Fish and Wildlife Service for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act (Act) of 1973. The Applicant has been assigned Permit Number PRT-798634. The requested permit, which is for a period not to exceed 2 years, would authorize the incidental take of the threatened desert tortoise (Gopherus agassizii). The proposed take would occur as a result of further improvement and continued use of an access road to the Tuacahn School and Performing Arts Center (Tuacahn Center) in Ivins, Washington County, Utah. The road was constructed by the Applicant but has been deeded to the city of Ivins. It is anticipated that the road will be paved and will serve employees, students, and visitors of the Tuacahn Center. The Applicant has prepared a habitat conservation plan and an environmental assessment for the incidental take permit application. This notice is provided pursuant to section 10(c) of [[Page 7786]] the Act and National Environmental Policy Act regulations (40 CFR 1506.6). DATES: Written comments on the habitat conservation plan, permit application, and environmental assessment must be received within 30 days of the date of this publication. ADDRESSES: Requests for any of the above documents and comments or materials concerning them should be sent to the Assistant Field Supervisor, Fish and Wildlife Service, 145 East 1300 South, Suite 404, Salt Lake City, Utah 84115. The documents and comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address. FOR FURTHER INFORMATION CONTACT: Robert D. Williams, Assistant Field Supervisor (See ADDRESSES above) (telephone (801) 524-5001, facsimile (801) 524-5021). SUPPLEMENTARY INFORMATION: Section 9 of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.), prohibits the ``taking'' of any threatened or endangered species, including the desert tortoise. However, the Fish and Wildlife Service (Service), under limited circumstances, may issue permits to take threatened and endangered wildlife species if such taking is incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for threatened and endangered species are at 50 CFR 17.22. The Heritage Arts Foundation, a nonprofit foundation, is currently constructing the Tuacahn School and Performing Arts Center (Tuacahn Center) on an 80-acre parcel in Padre Canyon in the city of Ivins, Washington County, Utah. There is a 2.1 kilometer (1.3 mile) graded access road to the Tuacahn Center that was constructed 2 years ago. The access road and the Tuacahn Center site are known to be inhabited by the desert tortoise, a threatened species. Development of the Tuacahn Center site and access road has occurred over the last several years without formal section 7 consultation or a section 10(a)(1)(B) incidental take permit under the Act. In a December 24, 1991, letter to the Applicant regarding a desert tortoise ``presence or absence'' survey of the site for the Tuacahn Center, the Service noted that the survey did not find concrete evidence that desert tortoises inhabited the site proposed for development. No live desert tortoises, cover sites (such as dens and burrows), or tracks were found. The Service further stated in the letter that due to the proximity of the desert tortoise in the project area there would always be the chance that one or more individuals could move onto the property that was to be developed or construction activities may impact active tortoise habitat. Additionally, the Service stated that if a tortoise was found on the property at any time, all construction and any other activity that may harm the animal should stop and the Service's Salt Lake City Office be notified immediately. At that time the Service would determine the best course of action. A surveyor was contracted by the Applicant to complete a desert tortoise ``presence or absence'' survey along the then-proposed access road, but the road was constructed before the survey was started and the surveyor decided not to conduct the survey. Therefore, a desert tortoise ``presence or absence'' survey was conducted only on the Tuacahn Center site and not on the access road. Two desert tortoises were found dead in 1994 on the access road, crushed by construction vehicles. As agreed to in a Stipulated Settlement (Agreement) between the Applicant and the U.S. Department of Justice dated August 17, 1994, the Applicant prepared a habitat conservation plan and applied for an individual section 10(a)(1)(B) incidental take permit from the Service. The habitat conservation plan addresses the further improvement and continued use of the Tuacahn Center access road. The Applicant prepared an environmental assessment as part of the permit application. The Applicant considered two other alternatives--a no action alternative and an alternate access road location alternative. The Applicant rejected the no action alternative because a habitat conservation plan would not be pursued and no section 10(a)(1)(B) incidental take permit would be issued. This would violate the Agreement signed by the Applicant and the Justice Department. In addition, the road has already been constructed and the Tuacahn Center is 90 percent completed. Vehicle use of the road continues and is expected to increase once the Tuacahn Center opens. Without a section 10(a)(1)(B) permit, a risk of further unauthorized take of desert tortoises is possible. The second alternative that was considered and rejected was to move the access road to further minimize potentially adverse impacts to the desert tortoise. The current location of the access road crosses an area of continuous desert tortoise habitat, yet it is economically feasible to construct underneath crossings in a small area. A possible alternate location would be to move the access road's intersection with Snow Canyon Road to the north at the base of the talus slope up the mouth of Padre Canyon. Taking the access road along the base of the cliffs would impact a much larger area crossed by tortoises and impact other candidate species such as the chuckwalla (Sauromalus obesus) and gila monster (Helorderma suspectum). Since 1991, the Washington County Commission has been developing a regional habitat conservation plan and section 10(a)(1)(B) permit application for take of desert tortoise in Washington County for the Upper Virgin River Recovery Unit. When finalized, this proposed regional habitat conservation plan will incorporate the Tuacahn Center project area and access road. The proposed Washington County regional habitat conservation plan is expected to be released by June 1995. Authority The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) and the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). Dated: February 3, 1995. Ralph O. Morgenweck, Regional Director, Denver, Colorado. [FR Doc. 95-3244 Filed 2-8-95; 8:45 am] BILLING CODE 4310-55-M