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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R6-ES-2009-N277; 65411-1112-0000-A2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability; receipt of application.

# SUMMARY:

                        We, the Fish and Wildlife Service (Service), have received an application from Herman Young and Sons, Inc. (Applicant), for an enhancement of survival permit (permit) under the Endangered Species Act of 1973, as amended (Act). The permit application includes a proposed Candidate Conservation Agreement with Assurances (CCAA) for the least chub (                        *Iotichthys phlegethontis*) and Columbia spotted frog (                        *Rana lutreiventris*) between the Applicant, the Utah Division of Wildlife Resources (UDWR), and the Service. The CCAA would be implemented at the Bishop Springs marsh complex (Bishop Springs) in Juab County, Utah. We have made a preliminary determination that the proposed CCAA and permit application are eligible for categorical exclusion under the National Environmental Policy Act of 1969 (NEPA). The basis for this preliminary determination is contained in an Environmental Action Statement. We are accepting comments on the permit application, the proposed CCAA, and the Environmental Action Statement.                    

# DATES:

We must receive comments no later than March 29, 2010.

# ADDRESSES:

                        Address all written comments to Larry Crist, by U.S. mail at Utah Field Office, U.S. Fish and Wildlife Service, 2369 West Orton Circle, Suite 50, West Valley City, UT 84119; by facsimile to 801-975-3331; or by e-mail to                         *larry_crist@fws.gov.*

# FOR FURTHER INFORMATION CONTACT:

                        Larry Crist, Utah Field Office Supervisor, 801-975-3330. If you use a                               ( print page 8734)                            telecommunications device for the deaf, you may call the Federal Information Relay Service at 800-877-8339.                    

# SUPPLEMENTARY INFORMATION:

                    Under a Candidate Conservation Agreement with Assurances, participating landowners voluntarily undertake management activities on their property to enhance, restore, or maintain habitat benefiting species that are proposed for listing under the Act, or that are candidates for listing, or may become candidates. Candidate Conservation Agreements with Assurances, and the subsequent permits we issue under section 10(a)(1)(A) of the Act (16 U.S.C. 1531*et seq.*), encourage private and other non-Federal property owners to implement conservation efforts for species, by assuring property owners that they will not be subjected to increased land use restrictions as a result of efforts to attract or increase the numbers or distribution of a listed species on their property, if that species becomes listed under the Act in the future. Application requirements and issuance criteria for permits through the Candidate Conservation Agreement with Assurances are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22(d) and 17.32(d).                

Historically, least chub and Columbia spotted frog inhabited a variety of aquatic habitat types throughout the Bonneville Basin in Utah. In the West Desert of Utah these species occur in many of the same spring complexes, including Bishop Springs. Both species have declined to the extent that they have been considered for listing under the Endangered Species Act.

A decline in the distribution and abundance of the least chub was first noted in the 1940s and 1950s. Habitat loss and degradation have been identified as major causes for this decline. Surveys indicate that where nonnative fishes have been introduced, few if any least chub remain.

In 1998, the Service, Utah Department of Natural Resources, Bureau of Land Management (BLM), Bureau of Reclamation, Utah Reclamation Mitigation and Conservation Commission, Confederated Tribes of the Goshute Reservation, and Central Utah Water Conservancy District signed a Least Chub Conservation Agreement and Strategy (LCCAS). The LCCAS is a voluntary agreement to ensure the long-term survival of the least chub within its historic range and assist in the development of rangewide conservation efforts. Significant conservation measures were accomplished for the species and several new populations were located outside the West Desert ecosystem. The only remaining naturally occurring and relatively secure populations of least chub are present in five spring complexes in Snake Valley, Utah, one of which is Bishop Springs. Groundwater pumping may impact these sites in the future.

The Columbia spotted frog was removed as a candidate for listing under the Act in 1999. Since that time, an interagency team continues to manage the species in accordance with Columbia Spotted Frog Conservation Agreement and Strategy (SPCAS). Despite this conservation agreement, some habitat loss and localized impacts to the spotted frog remain.

The proposed CCAA represents another significant milestone in the cooperative conservation efforts for these species and is consistent with section 2(a)(5) of the Act, which encourages creative partnerships among public, private, and government entities to conserve imperiled species and their habitats. The CCAA is also consistent with continued implementation of the LCAS and SPCAS and addresses known impacts to both species at Bishop Springs.

Conservation efforts in the proposed CCAA will provide perennial and legally protected instream flows to Bishop Springs for supporting self sustaining populations of least chub and spotted frog. Under the proposed CCAA, the UDWR would use a water right, conveyed by the Applicant, to maintain instream flow at Bishop Springs to protect and maintain approximately 1,020 acres of habitat for the least chub and Columbia spotted frog. The Applicant previously used this water right to irrigate agricultural lands. The Applicant will agree to: (1) Reduce water diversion from Bishop Springs through the use of a more efficient irrigation system improved by UDWR; (2) reduce acreage irrigated; and (3) not appropriate additional water from Bishop Springs. Certain restrictions on the volume and flow of the Applicant's reserved water right would allow beneficial use of water for irrigation of agricultural lands, while ensuring suitable habitat conditions for both species.

Under certain conditions, such as prolonged drought, a small number of individuals of these species could die if they are unable to retreat to areas with adequate water. Therefore, the Service proposes to issue the permit under this CCAA to provide the Applicant with regulatory certainty regarding take prohibitions of section 9 of the Act should the species become listed in the future. The proposed duration for the CCAA and permit is 99 years.

When determining whether to issue the permit, we will consider a number of factors and information sources, including the project's administrative record, any public comments we receive, and the application requirements and issuance criteria for CCAAs contained in 50 CFR part 17.22(d) and part 17.32(d). We will also evaluate whether the issuance of the permit complies with section 7 of the Act by conducting an intra-Service consultation. The results of this consultation, in combination with the above findings, regulations, and public comments, will determine whether or not we issue the permit.

The proposed CCAA also provides the Applicant with regulatory assurances, that in the event of unforeseen circumstances, we would not require additional conservation measures or the commitment of additional land, water, or resource use restrictions beyond the level obligated in this Agreement, without the consent of the Applicant and UDWR.

We have made the preliminary determination that the Applicant's conservation measures meet the intent of the CCAA policy, based on the proposed protection of established populations and habitat for these species within their historic range. Habitat conditions within Bishop Springs have been evaluated by the Applicant, UDWR, and the Service, and are suitable for sustaining and enhancing populations of least chub and Columbia spotted frog.

                    We have also made a preliminary determination that the proposed Agreement and permit issuance are eligible for categorical exclusion under NEPA. The basis for this determination is in the Environmental Action Statement, which is available for public review (                    *see***ADDRESSES**                    ).                

                    If you wish to comment on the Agreement and associated documents, you may submit your comments to the Service (                    *see***ADDRESSES**                    ). 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 will evaluate this permit application, associated documents, and comments submitted thereon to determine whether the permit application meets the requirements of                           ( print page 8735)                        section 10(a) of the Act and NEPA regulations at 40 CFR 1506.6. If we determine that the requirements are met, we will sign the proposed Agreement and issue a permit under section 10(a)(1)(A) of the Act to the Applicants for take of the covered species in accordance with the terms of the Agreement. We will not make our final decision until after the end of the 30-day comment period, and we will fully consider all comments we receive during the comment period.                

We provide this notice under section 10(c) of the Act and implementing regulations for NEPA (40 CFR 1506.6).

Dated: February 18, 2010.

Larry Crist,

Field Supervisor, Utah Ecological Services Office.

[FR Doc. 2010-3853 Filed 2-24-10; 8:45 am]

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