NEPA Scoping Meeting Information Handout (00064119)

Information Handout Public Scoping Meeting U.S. Fish and Wildlife Service Environmental Impact Statement for the LCRA Transmission Service Corporation (TSC) Competitive Renewable Energy Zones (CREZ) Proposed Habitat Conservation Plan and Incidental Take Permit

Introduction

This handout includes information regarding Incidental Take Permits, Habitat Conservation Plans (HCPs), and the National Environmental Policy Act (NEPA).

What is take?

Section 9 of the Endangered Species Act (Act) prohibits “take” of endangered or threatened species. Take is defined in the Act as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect any threatened or endangered species. Harass is defined as actions that create the likelihood of injury to listed species 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 (50 CFR §17.3). Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering (50 CFR §17.3).

Incidental taking means any taking, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.

What is an Incidental Take Permit?

Incidental Take Permits authorize take of listed species associated with non-Federal activities, but do not authorize the activities that result in that take. Incidental Take Permits also provide the permit holders protection from violating the Act.

Are Incidental Take Permits needed for listed plants?

There are no prohibitions under the Act for the take of listed plants on non-Federal lands, unless taking of those plants is in violation of State law. However, before the U.S. Fish and Wildlife Service (Service) issues a permit, the effects of the permit on listed plants must be analyzed because Section 7 of the Act requires that issuance of an Incidental Take Permit must not jeopardize any listed species, including plants.

What is the process for getting an Incidental Take Permit?

The applicant decides whether to seek an Incidental Take Permit. While the Service staff members provide detailed guidance and technical assistance throughout the process, the applicant develops an HCP and applies for the permit. The components of a completed permit application are a standard application form, an HCP, an Implementation Agreement (if applicable), the application fee, and a draft NEPA analysis. A NEPA analysis may result in a categorical exclusion (CE), an environmental assessment (EA), or an Environmental Impact Statement (EIS). While processing the permit application, the Service prepares the Incidental Take Permit and a Biological Opinion (BO) under Section 7 of the Act and finalizes the NEPA analysis documents. Consequently, incidental take permits have a number of associated documents. If the Service determines that the applicant’s HCP meets Information Handout the incidental take permit issuance criteria set forth in section 10(a) of the ESA, then the Service is required to issue the applicant a permit.

The target timeline from receipt of a complete application to the issuance of a permit for low-effect HCP is up to three months, HCPs with an EA are four to six months, and HCPs with a 90-day comment period and/or EIS may be up to 12 months or longer.

What is an HCP?

An HCP is a planning document required as part of the application for an Incidental Take Permit. It describes the anticipated effects of the proposed taking; how the applicant proposes to minimize or mitigate those effects; and possible funding of the HCP. HCPs can apply to both listed and non-listed species, including those that are candidates or have been proposed for listing. Conserving species before they are in danger of extinction or are likely to become so can also provide early benefits and prevent the need for listing.

Benefits of an Incidental Take Permit and HCP

The Incidental Take Permit allows an applicant to proceed with an activity that would otherwise result in the unauthorized take of a listed species. The Service also developed a regulation to address the problem of maintaining regulatory assurances and providing certainty to applicants through the HCP process, the “No Surprises” regulation. This regulation assures a permittee that if “unforeseen circumstances” arise, the Service will not require additional commitments beyond the level otherwise agreed to in the HCP without the consent of the permittee.

Authorities and Responsibilities

The Service is responsible for the administration of the Act. The Act requires Service to maintain lists of threatened and endangered species and affords substantial protection to listed species. Section 9 of the Act prohibits take of endangered and threatened species. Section 10(a)(1)(B) of the Act authorizes the Service to issue permits for the incidental take of federally listed wildlife species that is incidental to, but not the purpose of, otherwise lawful activities.

HCP Permit Issuance Criteria

HCPs are required to meet the permit issuance criteria of Section 10(a)(2)(B) of the ESA. The Service must issue an Incidental Take Permit when the Service finds that:  Taking will be incidental to otherwise lawful activities;  The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking;  The applicant will ensure that adequate funding for the plan will be provided;  Taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and,  Other measures, as required by the Secretary, will be met.

What needs to be in HCPs?

Section 10 of the Act and its implementing regulations define the contents of HCPs. They include:  An assessment of impacts likely to result from the proposed taking of one or more federally listed species.

2 Public Scoping Meetings for the Proposed LCRA TSC-CREZ Habitat Conservation Plan and Incidental Take Permit Information Handout  Measures that permit applicant will undertake to minimize and mitigate for such impacts, the funding available to implement such measures, and the procedures to deal with unforeseen or extraordinary circumstances.  Alternative actions to the taking that the applicants analyzed, and the reasons why the applicant did not adopt such alternatives.  Additional measures that the Service may require.

HCPs are also required to comply with the Five Points Policy by including: 1) Biological goals and objectives, which define the expected biological outcome for each species covered by the HCP; 2) Adaptive management, which includes methods for addressing uncertainty and also monitoring and feedback to biological goals and objectives; 3) Monitoring for compliance, effectiveness, and effects; 4) Permit duration which is determined by the time-span of the project and designed to provide the time needed to achieve biological goals and address biological uncertainty; and, 5) Public participation according to NEPA

What other laws besides the Endangered Species Act are involved?

In issuing an Incidental Take Permit, the Service must comply with the NEPA (42 USC 4321 et seq.) and all other statutory and regulatory requirements, including any State or local environmental/planning laws. NEPA requires Federal agencies to consider the environmental consequences of proposed actions in their decision-making process.

Purpose of a National Environmental Policy Act Document

The primary purpose of a NEPA document is to provide an analysis of the potential impacts of a proposed major federal action, as well as an analysis of the impacts of a reasonable range of alternatives to that action. The NEPA document will be used by Federal officials in conjunction with other relevant material to plan actions and make decisions. It is important to note that NEPA does not require that the Federal agency choose an alternative with the least environmental impact; rather, NEPA requires only that the Federal agency take a hard look at the potential impacts of each alternative. An Environmental Impact Statement (EIS) is prepared for major federal actions if there is a “potential to significantly affect the quality of the human environment.”

Does the public get to comment on an HCP?

The CEQ regulations require that “agencies shall make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” The Act requires a 30-day period for public comments on applications for Incidental Take Permits. In addition, because NEPA requires public comment on certain documents, the Service operates the two comment periods concurrently. Depending on the proposed permit area and any number of other factors, the comment period for an HCP accompanied by an EIS typically lasts between 30 and 90 days. The Service considers public comments in permit decisions.

The Scoping Process

Scoping is the process used to determine the scope of issues to be addressed by the EIS as well as to identify significant issues related to a proposed action. As part of the scoping process, the Federal action agency will also identify and eliminate from detailed study the issues which are not significant or which have been covered by prior environmental review, thereby narrowing the discussion of these issues to a brief discussion of why they 3 Public Scoping Meetings for the Proposed LCRA TSC-CREZ Habitat Conservation Plan and Incidental Take Permit Information Handout will not have a significant effect on the human environment or providing a reference to their coverage elsewhere. Public participation is an integral part of scoping, which involves interested persons and affected Federal, state, and local agencies early in the process. Scoping participants might include:

 Citizens who live, work, or recreate in the area where the proposed action is to or may occur;  Public interest groups and native communities that have concerns about possible impacts to environmental, social, or economic resources;  Federal, state, local, and Tribal governmental agencies that have responsibilities for managing public resources or services;

The first step in the scoping process is to announce to the public, by a Federal Register Notice of Intent (NOI) and press release, that an EIS will be prepared and to ask for comments about what topics/issues should be included in the EIS. The scoping period formally begins with the publication of the NOI and will extend for at least 30 days. The lead agency holds one or more public meetings in communities that might be affected by the proposed activities. The purpose of soliciting input is to identify as many relevant issues, alternatives, mitigation measures, and analytical tools as possible. Comments received at these meetings are then compiled and incorporated into the EIS. The scoping comments assist in determining the breadth and depth of the analysis.

In addition to the public involvement that occurs during the scoping process, the Draft EIS must be made available for public and agency review and comment, and comments must be addressed in the Final EIS.

Additional information is available at the U.S. Fish and Wildlife Service Endangered Species Habitat Conservation Planning website: http://www.fws.gov/endangered/hcp/index.html

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