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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R1-ES-2010-N219; 10120-1112-0000-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

      ( print page 68822)    

# ACTION:

Notice of availability; request for comments.

# SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), have received an application from Kaheawa Wind Power II, LLC (KWP II) (Applicant) for an incidental take permit (permit) under the Endangered Species Act of 1973, as amended (ESA). The Applicant is requesting an incidental take permit under the ESA to authorize take of three Federally endangered and one threatened bird species. The permit application includes a draft Habitat Conservation Plan (HCP) and a draft Implementing Agreement (IA). We also announce the availability of a draft Environmental Assessment (EA) that has been prepared in response to the permit application in accordance with requirements of the National Environmental Policy Act (NEPA). We are making the permit application package and draft EA available for public review and comment.

# DATES:

All comments from interested parties must be received on or before December 9, 2010.

# ADDRESSES:

Please address written comments to Loyal Mehrhoff, Project Leader, Pacific Islands Fish and Wildlife Office, U.S. Fish and Wildlife Service, 300 Ala Moana Boulevard, Room #3-122, Honolulu, HI 96850. You may also send comments by facsimile to (808) 792-9580.

# FOR FURTHER INFORMATION CONTACT:

                        James Kwon, Fish and Wildlife Biologist, U.S. Fish and Wildlife Service (                        *see***ADDRESSES**                         above), telephone (808) 792-9400.                    

# SUPPLEMENTARY INFORMATION:

                    The Applicant is requesting an incidental take permit under the ESA to authorize take of the Federally endangered Hawaiian petrel (                    *Pterodroma sandwichensis*), endangered Hawaiian goose (nēnē) (                    *Branta**sandvicensis*), endangered Hawaiian hoary bat (                    *Lasiurus cinereus semotus*), and the threatened Newell's (Townsend's) shearwater (                    *Puffinus auricularis newelli*) (collectively these four species are hereafter referred to as the “Covered Species”). The permit application includes a draft Habitat Conservation Plan (HCP) that describes the Applicant's actions and the measures the Applicant will implement to minimize, mitigate, and monitor incidental take of the Covered Species, and a draft Implementing Agreement (IA).                

## Availability of Documents

                    You may request copies of the permit application, which includes the draft HCP, IA, and EA, by contacting the Service's Pacific Islands Fish and Wildlife Office (                    *see***FOR FURTHER INFORMATION CONTACT**                     above). These documents are also available electronically for review on the U.S. Fish and Wildlife Service Pacific Islands Fish and Wildlife Office Web site at                     *http://www.fws.gov/​pacificislands.*                     Comments and materials we receive, as well as supporting documentation we use in preparing the NEPA document, will become part of the public record and will be available for public inspection by appointment, during regular business hours. Before including your address, phone number, e-mail 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 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.                

                    We specifically request comments from the public on whether the application meets the statutory and regulatory requirements for issuing a permit, and identification of any aspects of the human environment that should be analyzed in the draft EA. We are also soliciting comments on the: adequacy of the HCP to minimize, mitigate, and monitor the proposed incidental take of the Covered Species; adequacy of the funding being provided to implement the proposed mitigation program and changed circumstances; adequacy of the adaptive management program; and certainty that mitigation will occur. Please evaluate against the permit issuance criteria found in section 10(a) of the ESA, 16 U.S.C.1539(a), and 50 CFR 13.21, 17.22, and 17.32. In compliance with section 10(c) of the ESA (16 U.S.C 1539(c)), we are making the permit application package available for public review and comment for 30 days (                    *see***DATES**                     section above).                

## Background

Section 9 of the ESA (16 U.S.C. 1538) and Federal regulations prohibit the take of fish and wildlife species listed as endangered or threatened. The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct (Id.). However, under section 10(a) of the ESA (16 U.S.C.1539(a)), we may issue permits to authorize incidental take of listed fish and wildlife species. Incidental take is defined as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found at 50 CFR 17.32 and 17.22. If issued, the permittee would receive assurances under the Service's “No Surprises” regulations at 50 CFR 17.32(b)(5) and 50 CFR 17.22(b)(5).

KWP II is a fully owned subsidiary of the Boston-based wind energy company, First Wind, and would supply wind-generated electricity to the Maui Electric Company. KWP II has developed a draft HCP that addresses the incidental take of the four Covered Species caused by the construction and operation of the KWP II wind energy facility over a period of 20 years.

The proposed project is located southeast of the existing 30-megawatt (MW), 21-turbine Kaheawa Wind Power I (KWP I) project. Like KWP II, KWP I is owned by First Wind and is operating under an existing HCP that addresses incidental take of the same four covered species. At KWP I, the Hawaiian petrel, Hawaiian goose, and Hawaiian hoary bat are known to have collided with wind turbine structures.

                    The Hawaiian petrel and Newell's shearwater breed on Maui and feed in the open ocean. Both covered seabird species spend a large part of the year at sea. Adults generally return to their colonial nesting grounds in the interior mountains of Maui beginning in March and April, and depart beginning in September. Fledglings (                    *i.e.,*                     young birds learning how to fly) travel from the nesting colony to the sea in the fall. Both adults and fledglings are known to collide with tall buildings, towers, powerlines, and other structures while flying at night between their nesting colonies and at-sea foraging areas. The nēnē is resident on site and is known to nest in areas adjacent to the proposed wind energy facility. The Hawaii hoary bat has been observed on site by acoustic monitoring; however, no evidence of roosts has been detected.                

## Proposed Plan

                    The activities proposed to be covered by the permit include the construction and operation of a new 21-megawatt, 14-turbine wind energy generation facility at Kaheawa Pastures above Maalaea, in the southwestern portion of the Island of Maui, Hawai`i. The proposed facility will consist of 14 General Electric wind turbine generators (WTGs), a maintenance building (and renovations to the existing Operations and Maintenance building), an electrical substation, a battery energy storage system, an underground electrical collection system carrying electrical power from individual WTGs to the                           ( print page 68823)                        electrical substation, an overhead transmission line to connect the substation to the Maui Electric Company Ltd. transmission line, a permanent unguyed meteorological monitoring tower, and short service roads to connect the new WTGs and other facilities to the existing main access road servicing KWP I. The overall project is located within a combined footprint area of approximately 143 acres (58 hectares). The Applicant has also applied for a State of Hawai`i incidental take license under Hawai`i State law. The draft HCP describes the impacts of take associated with those activities on the Covered Species, and proposes a program to minimize and mitigate take on each of the Covered Species.                

KWP II is proposing mitigation measures that include: (1) Active management such as predator removal and construction of cat- and mongoose-proof fences at Hawaiian petrel and Newell's shearwater colonies; (2) captive propagation and release of nēnē goslings; (3) habitat management and predator control to increase nēnē breeding success and survival; (4) surveys to document the distribution and abundance of the Hawaiian hoary bat; and (5) habitat management and reforestation to benefit the recovery of the Hawaiian hoary bat. This HCP incorporates adaptive management provisions to allow for modifications to the mitigation and monitoring measures as knowledge is gained during implementation.

We invite comments and suggestions from all interested parties and request that comments be as specific as possible. In particular, we request information and comments regarding the following issues:

(1) The direct, indirect, and cumulative effects that implementation of any reasonable alternatives could have on endangered and threatened species;

(2) Other reasonable alternatives consistent with the purpose of the proposed HCP as described above, and their associated effects;

(3) Measures that would minimize and mitigate potentially adverse effects of the proposed action;

(4) Adaptive management or monitoring provisions that may be incorporated into the alternatives, and their benefits to listed species;

(5) Other plans or projects that might be relevant to this action;

(6) The proposed term of the Incidental Take Permit and whether the proposed conservation program would minimize and mitigate to the maximum extent practible the incidental take that would be expected to occur over 20 years; and

(7) Whether the HCP meets other ESA sec. 10(a)(2)(B) (16 U.S.C. (a)(2)(B), issuance criteria; and

(8) Any other information pertinent to evaluating the effects of the proposed action on the human environment.

The draft EA considers the direct, indirect, and cumulative effects of the proposed action of permit issuance, including the measures that will be implemented to minimize and mitigate such impacts. The EA contains an analysis of three alternatives: (1) Issuance of an incidental take permit to KWP II on the basis of the proposed HCP with the downroad siting location; (2) the issuance of a permit based on the downwind/downstring siting location; and (3) No Action (no permit issuance and no measures by the Applicant to reduce or eliminate the take of Covered Species).

This notice is provided under section 10(c) (16 U.S.C. 1539(c)) of the ESA and NEPA regulations (40 CFR 1506.6). The public process for the proposed Federal action will be completed after the public comment period, at which time we will evaluate the permit application, the HCP and associated documents (including the EA), and comments submitted thereon to determine whether or not the proposed action meets the requirements of section 10(a) (16 U.S.C. 1539(a)) of the ESA and has been adequately evaluated under NEPA.

Dated: October 20, 2010.

Richard Hannan,

Deputy Regional Director.

[FR Doc. 2010-28197 Filed 11-8-10; 8:45 am]

BILLING CODE 4310-55-P