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###### Department of the Interior

###### Fish and Wildlife Service

###### Bureau of Reclamation

          - [INT-FES-04-47]

# AGENCIES:

Fish and Wildlife Service, Bureau of Reclamation, Interior.

# ACTION:

Notice of availability.

# SUMMARY:

                        Pursuant to the National Environmental Policy Act (NEPA), the Fish and Wildlife Service (Service) and the Bureau of Reclamation (Reclamation) published a                         **Federal Register**                         notice on June 18, 2004 (69 FR 34185) that informed the public of the availability of the Draft Environmental Impact Statement/Draft Environmental Impact Report (DEIS/DEIR) for the Lower Colorado River Multi-Species Conservation Program (LCR MSCP), Application for Section 10 Incidental Take Permit (ITP), Draft Lower Colorado River Multi-Species Habitat Conservation Plan (HCP), Draft Biological Assessment (BA), and Draft Implementing Agreement (IA).                    

                        The notice provided for a 60-day comment period; comments were accepted pursuant to the notice through August 18, 2004. The notice also advised the public that the Service received an ITP application for the LCR MSCP pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The ITP would authorize the LCR MSCP permittees' incidental take of the following federally listed and candidate species: southwestern willow flycatcher (                        *Empidonax traillii extimus*) (flycatcher), Yuma clapper rail (                        *Rallus longirostris yumanensis*) (clapper rail), desert tortoise (                        *Gopherus agassizii*) (tortoise), bonytail (                        *Gila elegans*) (bonytail), humpback chub (                        *Gila cypha*) (humpback), razorback sucker (                        *Xyrauchen texanus*) (razorback), yellow-billed cuckoo (                        *Coccyzus americanus*) (cuckoo), and relict leopard frog (                        *Rana onca*) (frog). The ITP would also address incidental take for 19 other species of animals and plants that are not federally listed or candidate species at this time. The proposed take would occur in Mohave, La Paz, and Yuma counties, Arizona; San Bernardino, Riverside, and Imperial counties, California; and Clark County, Nevada, as a result of water storage and delivery, power generation, and other associated federal and non-federal water management actions and activities on the lower Colorado River from the full pool elevation of Lake Mead to the Southerly International Boundary with Mexico.                    

A Final HCP, which makes revisions to the Draft HCP submitted as part of the application package (Application), has been submitted to the Service as required by the Act for consideration of issuance of an ITP, pursuant to section 10(a)(1)(B). The HCP provides measures to minimize and mitigate the effects of the proposed incidental take of listed, candidate, and other species.

Reclamation, the Service, Bureau of Land Management (BLM), Bureau of Indian Affairs (BIA), National Park Service (NPS), and Western Area Power Administration (Western), have completed a Final BA, which includes an evaluation of the effects of specific ongoing and potential future federal actions, including Reclamation's discretionary LCR operations and maintenance activities. In addition, the BA addresses Reclamation's proposed implementation of the conservation plan and conservation measures described in the BA and in the HCP for the listed, candidate, and other covered species.

The Service, Reclamation, and The Metropolitan Water District of Southern California, as joint lead agencies, have issued a Final Environmental Impact Statement/Final Environmental Impact Report (FEIS/FEIR) to evaluate the impacts of, and alternatives for, the possible issuance of an ITP and the implementation by Reclamation of conservation measures described in the BA and the HCP.

                        As of the June 18, 2004,                         **Federal Register**                         Notice, a Draft IA that represented the positions of the federal and non-federal entities that are anticipated to participate in the LCR MSCP had not yet been completed. Subsequent to the publication of the June 18, 2004,                         **Federal Register**                         notice, letters of financial commitment from representatives of the States of Arizona, California and Nevada were received by the Secretary of the Interior on August 17, 2004, during the public comment period on the Draft LCR MSCP program documents. These letters provide a commitment to “share in the agreed upon LCR MSCP costs equally with the United States on a 50/50 federal/non-federal basis.”                    

                        A number of other public comments received pursuant to the June 18, 2004,                         **Federal Register**                         notice sought information regarding the financial assurances necessary to implement the LCR MSCP. The commitments contained in the August 17, 2004, letters from Arizona, California, and Nevada have now been incorporated into a Draft Funding and Management Agreement (FMA), which was developed during negotiations between the federal and non-federal parties to the LCR MSCP and is published as Exhibit A to the Final HCP. In addition, the parties have also developed a Draft IA, which is published as Exhibit B to the Final HCP.                    

                        Subsequent to publication of this                         **Federal Register**                         Notice and the FEIS/FEIR and other program documents, the Draft IA and Draft FMA will be presented to the relevant approving officials and respective boards. No final decisions have been made by the federal or non-federal parties with respect to the financial commitments or other provisions set forth in the August 17th letters and the Draft FMA, or with respect to the provisions in the Draft IA. Appropriate revisions, if any, will be included in any Final FMA and Final IA. Appropriate information regarding the issues addressed in the Draft FMA and the Draft IA will also be included in any Record of Decision (ROD) issued by the Secretary with respect to the LCR MSCP.                    

# DATES:

                        No decision will be made on the proposed action until at least 30 days after the United States Environmental Protection Agency's (EPA) Notice of Availability for the LCR MSCP FEIS/FEIR has been published in the                         **Federal Register**                        . At this time, it is anticipated the Secretary of the Interior will complete a ROD in January 2005.                    

# ADDRESSES:

                        Copies of the LCR MSCP FEIS/FEIR, Final HCP, Final BA, Draft IA, and Draft FMA are available for public inspection and review at the locations listed in the                         **SUPPLEMENTARY INFORMATION**                         section. An internet version of the documents is available on the LCR MSCP Web site,                         *http://www.lcrmscp.org.*                         In addition, copies are available upon request from Mr. Steve Spangle, Field Supervisor, U.S. Fish and Wildlife Service, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021; or Mr. Glen Gould, Bureau                               ( print page 75557)                            of Reclamation, P.O. Box 61470, LC-2011, Boulder City, NV, 89006-1470.                    

# FOR FURTHER INFORMATION, CONTACT:

Mr. Steve Spangle, Field Supervisor, Fish and Wildlife Service, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021 or (602) 242-0210; or Mr. Glen Gould, Bureau of Reclamation, P.O. Box 61470, LC-2011, Boulder City, NV, 89006-1470 or (702) 293-8702.

# SUPPLEMENTARY INFORMATION:

This notice advises the public that the Service and Reclamation, with the participation of other federal and non-federal agencies, have gathered the information necessary to: (1) Formulate alternatives and determine impacts for the FEIS/FEIR related to the issuance of an ITP for the LCR MSCP; and (2) develop and implement the HCP, which provides measures to minimize and mitigate the effects of incidental take of federally listed species to the maximum extent practicable.

Section 9 of the Act prohibits the “taking” of threatened and endangered species. However, the Service, under limited circumstances, may issue ITPs to take threatened or endangered wildlife species when such taking is incidental to, and not the purpose of, otherwise lawful activities. Regulations governing issuance of ITPs pursuant to the Act are published at 50 CFR Parts 13 and 17. This notice is provided pursuant to Section 10(c) of the Act and applicable NEPA regulations (40 CFR 1506.6).

                    The LCR MSCP, the conservation program described in the HCP, and the BA were developed over the past seven years in a public process involving participants and stakeholders from potentially affected or interested groups on the LCR. These groups include federal agencies,                     *i.e.*, the Service, Reclamation, BLM, BIA, NPS, and Western; six Tribes; the Lower Basin States of Arizona, California, and Nevada; and other interested LCR stakeholders. The groups were organized into a Steering Committee and various subject matter subcommittees to oversee the development of the LCR MSCP. Meetings of the Steering Committee were open to the public and time for public comment was included at each meeting. The LCR MSCP website contains information on meetings and documents. Three sets of public meetings were held from 1999 through 2003 to explain the need for the LCR MSCP, request information on important issues for the NEPA process, receive input on the conservation program, and present alternatives. Three public hearings were held in July 2004 to receive public comment on the DEIS/DEIR.                

*Proposed Action:*                     The proposed action has two components. The first is the issuance of an ITP by the Service for covered activities on the LCR undertaken by the HCP applicants, pursuant to section 10(a)(1)(B) of the Act. The activities that would be covered by the ITP are water- and power-related actions, and other specific identified non-federal activities involving the LCR. The area covered by the ITP (and the LCR MSCP) includes Lake Mead up to its full pool elevation of 1,229 feet, Lake Mohave up to its full pool elevation of 647 feet, Lake Havasu up to its full pool elevation of 450 feet, and the LCR and its historical floodplain from the highest elevation of Lake Mead to the Southerly International Boundary with the Republic of Mexico. The requested term of the permit is 50 years. To meet the requirements of a section 10(a)(1)(B) ITP, the LCR MSCP participants have developed and, with the cooperation of Reclamation, will implement the conservation plan described in the BA and in the HCP, which provides measures to minimize and mitigate incidental take of flycatchers, clapper rails, tortoises, bonytails, humpbacks, and razorbacks to the maximum extent practicable, and which ensures that the incidental take will not appreciably reduce the likelihood of the survival and recovery of these species in the wild. The conservation plan identified in the BA and the HCP also addresses potential impacts on the cuckoo and frog (candidate species) and 19 other species of animals and plants.                

The second component is the completion of consultation under section 7(a)(2) with Federal action agencies for their covered actions (identified in Chapter 2 of the BA), including implementation of the conservation plan by Reclamation as part of its proposed action (along with its identified continued and future operations and maintenance activities on the LCR).

Alternatives: Three other alternatives are being considered as part of this process, as follows:

1. No ITP—No issuance of an ITP. This alternative would require the LCR MSCP participants to pursue individual ESA compliance activities to address incidental take resulting from their actions or activities on the LCR or avoid taking actions that would result in incidental take. This approach would require the federal action agencies to consult separately on any proposed discretionary actions on the LCR.

2. Listed Species Only—Issuance of an ITP authorizing the same covered actions by the LCR MSCP participants but only requesting incidental take coverage for the six species currently listed as endangered or threatened pursuant to the Act. This alternative includes measures to minimize and mitigate for the potential take of federally listed species.

3. Off-Site Conservation—Issuance of an ITP authorizing the same covered actions by the LCR MSCP participants and the same list of 27 species. Habitat restoration activities would occur outside of the LCR MSCP planning area in adjacent river basins. This alternative includes measures to minimize and mitigate for the potential take of federally listed species, candidate species, and other covered species.

                    Pursuant to the June 10, 2004, order in                     *Spirit of the Sage Council*                     v.                     *Norton*, Civil Action No. 98-1873 (D.D.C.), the Service is enjoined from approving new section 10(a)(1)(B) permits or related documents containing “No Surprises” assurances until such time as the Service adopts new permit revocation rules specifically applicable to section 10(a)(1)(B) permits in compliance with the public notice and comment requirements of the Administrative Procedure Act. This                     **Federal Register**                     notice provides notice of a step in the review and processing for the potential issuance of a section 10(a)(1)(B) permit; any subsequent permit issuance will be in accordance with the Court's order. Until such time as the Service's authority to issue permits with “No Surprises” assurances has been reinstated, the Service will not approve any incidental take permits or related documents that contain “No Surprises” assurances, consistent with the Court's order.                

Copies of the FEIS/FEIR, Final HCP, Final BA, ITP Application, Draft IA, and Draft FMA are available for public inspection and review at the following locations (by appointment at government offices):
    - Department of the Interior, Natural Resources Library, 1849 C. St. NW., Washington, DC, 20240.
    - Fish and Wildlife Service, 500 Gold Avenue SW., Room 4012, Albuquerque, NM, 87102.
    - Fish and Wildlife Service, 2321 West Royal Palm Road, Suite 103, Phoenix, AZ, 85021.
    - Bureau of Reclamation, Lower Colorado Region, 500 Date Street, Boulder City, NV, 86009-1470.
    - Bureau of Reclamation, Upper Colorado Region, 125 South State Street, Room 6107, Salt Lake City, UT, 84138-1102.       ( print page 75558)      
    - Bureau of Reclamation Library, Denver Federal Center, 6th Avenue and Kipling, Building 67, Room 167, Denver, CO, 80225.
    - Bureau of Reclamation, Phoenix Area Office, 2222 W. Dunlap Ave., Suite 100, Phoenix, AZ, 85021.
    - Metropolitan Water District of Southern California, 700 N. Alameda St., Los Angeles, CA, 90017.
    - Government Document Service, Arizona State University, Tempe, AZ, 85287.
    - Yuma County Library, 350 S. 3rd Ave., Yuma, AZ, 85384.
    - Palo Verde Valley Library, 125 W. Chanslor Way, Blythe, CA, 92225.
    - Mohave County Library, 1170 Hancock Rd., Bullhead City, AZ, 86442.
    - Laughlin Library, 2840 South Needles Hwy., Laughlin, NV, 89029.
    - Clark County Library, 1401 East Flamingo Road, Las Vegas, NV, 89119.
    - James I. Gibson Library, 280 Water Street, Henderson, NV, 89015.

Dated: December 14, 2004.

Willie R. Taylor,

Director, Office of Environmental Policy and Compliance.

[FR Doc. 04-27677 Filed 12-16-04; 8:45 am]

BILLING CODE 4310-MN-P