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[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Notices]
[Pages 329-331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-31519]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R2-ES-2024-0153; FXES 11130200000-245-FF02ENEH00]

Application for an Enhancement of Survival Permit; Eagle Creek 
Multi-Species Conservation Benefit Agreement; Greenlee and Graham 
Counties, Arizona

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Freeport Minerals, a subsidiary of Freeport-McMoRan 
Inc., for a 10(a)(1)(A) enhancement of survival permit supported by the 
proposed Eagle Creek Multi-Species Conservation Benefit Agreement (CBA) 
in Greenlee and Graham Counties, Arizona. With this notice, we announce 
the availability for public comment of the permit application, the 
proposed CBA, and the draft environmental assessment (EA). We invite 
comments from the public and Federal, Tribal, State, and local 
governments.

DATES: We must receive your written comments on or before February 3, 
2025.

ADDRESSES: Obtaining Documents: The documents this notice announces, as 
well as any comments and materials that we receive, will be available 
for public inspection online in Docket No. FWS-R2-ES-2024-0153 at 
https://www.regulations.gov.
    Submitting Comments: If you wish to submit comments on any of the 
documents, you may do so in writing by one of the following methods:
     Online: https://www.regulations.gov. Follow the 
instructions for submitting comments on Docket No. FWS-R2-ES-2024-0153.
     U.S. mail: Public Comments Processing; Attn: Docket No. 
FWS-R2-ES-2024-0153; U.S. Fish and Wildlife Service; MS: PRB/3W; 5275 
Leesburg Pike; Falls Church, VA 22041-3803.

FOR FURTHER INFORMATION CONTACT: Heather Whitlaw, Field Supervisor, 
U.S. Fish and Wildlife Service, Phoenix, Arizona, Ecological Services 
Office; telephone 602-834-7203. Individuals in the United States who 
are deaf, deafblind, hard of hearing, or have a speech disability may 
dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay 
services. Individuals outside the United States should use the relay 
services offered within their country to make international calls to 
the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), make available for public comment an application we received 
from Freeport Minerals Corporation (applicant) for an enhancement of 
survival permit (permit) under section 10(a)(1)(A) of the Endangered 
Species Act (ESA; 16 U.S.C. 1531 et seq.) supported by the CBA in 
Greenlee and Graham Counties, Arizona, and the associated draft EA. If

[[Page 330]]

approved, the requested 50-year permit would authorize incidental take 
of the spikedace (Meda fulgida), loach minnow (Tiaroga cobitis), and 
Gila chub (Gila intermedia), which are federally listed as endangered 
under the ESA, and the narrow-headed gartersnake (Thamnophis 
rufipunctatus), which is federally listed as threatened under the ESA 
(hereafter collectively referred to as the Covered Species).
    The incidental take would be of the Covered Species within the Plan 
Area of the CBA that results from ongoing and future activities on the 
applicant's enrolled property, as fully described in the draft CBA, 
during the permit term, take associated with conservation and 
management activities integral to meeting the CBA net conservation 
benefit standard, as well as take resulting from a return to baseline 
condition. As described in the CBA, baseline condition has been 
quantified for each species based on habitat miles or acreage.
    During the life of the permit, the applicant's ongoing and future 
activities include improvement, replacement, repair, construction, 
operation, and maintenance of their facilities and related 
infrastructure on lands adjacent to Eagle Creek. The CBA would provide 
a net conservation benefit for the Covered Species through construction 
of a nonnative fish barrier that will protect 8.4 miles (13.5 
kilometers) and approximately 682 acres (276 hectares) of Eagle Creek 
and immediately surrounding habitat from nonnative species invasion. 
This mileage and acreage are currently unprotected, and the CBA will 
increase the suitability of this area for management and recovery of 
the Covered Species by preventing invasion by detrimental non-native 
aquatic species. Applicant also proposes an exotic species removal 
study and native fish monitoring in the CBA that will also provide a 
net conservation benefit for the Covered Species.
    The Service is the lead for the proposed CBA approval and permit 
issuance. The Bureau of Reclamation (Reclamation) is a cooperating 
partner and will design, partially fund, construct, and carry out 
necessary operations and maintenance on the proposed fish barrier. 
Reclamation is the lead agency for development of the EA under the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.). The 
EA analyzes both Reclamation and the Service's proposed actions. The 
Service is a cooperating agency for the NEPA analysis.

Background

    Section 9 of the ESA and our implementing regulations at 50 CFR 
part 17 prohibit the ``take'' of fish or wildlife species listed as 
endangered or threatened. Take is defined under the ESA as to ``harass, 
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect 
listed animal species, or to attempt to engage in such conduct'' (16 
U.S.C. 1538(19)). However, under section 10(a) of the ESA, we may issue 
permits to authorize incidental take of listed species. ``Incidental 
take'' is defined by the ESA as take that is incidental to, and not the 
purpose of, carrying out an otherwise lawful activity. Regulations 
governing such take of endangered and threatened species are found at 
50 CFR parts 17.21-22 and 17.31-32, respectively.

Proposed Action

    The proposed action involves the issuance of a 10(a)(1)(A) permit 
to the applicant to authorize incidental take of the Covered Species 
resulting from implementation of the proposed CBA and the applicant's 
ongoing and future activities on their lands along Eagle Creek in 
Greenlee and Graham Counties, Arizona, including take resulting from 
barrier construction as well as ongoing management activities within 
the Covered Area but downstream of the proposed fish barrier, as 
described below.
    Both spikedace and loach minnow were listed as threatened in 1986, 
with their listing status changing to endangered in 2012 (February 23, 
2012; 77 FR 10810). Historically, spikedace was found in most rivers 
and streams in the Gila River Basin upstream of Phoenix, Arizona; 
however, much of its historic habitat has been destroyed as a result of 
habitat modification and by the introduction and spread of nonnative 
predatory and competitive species. Spikedace now remain in 
approximately 10 percent or less of the species' historical range. 
Loach minnow were once common throughout much of the Gila River Basin; 
however, much of its historic habitat has been destroyed through 
habitat modification and the introduction and spread of nonnative 
species. Loach minnow now remain in approximately 15 to 20 percent of 
the species' historical range.
    Gila chub was listed as endangered in 2005 (November 2, 2005; 70 FR 
66664). Historically, Gila chub were found throughout the Gila River 
basin in southern Arizona, southwestern New Mexico, and northeastern 
Sonora, Mexico. Gila chub have been reduced in numbers and distribution 
through the majority of the historical range. Primary threats to Gila 
chub include predation and competition with nonnative species and 
habitat alteration.
    Recently, there has been a taxonomic revision of the fish that have 
historically been classified as Gila chub; based on analyses of genetic 
and morphological data, the Gila chub is no longer recognized as a 
distinct taxonomic entity, but rather is actually within the roundtail 
chub (Gila robusta) species (April 7, 2017; 82 FR 16981). However, at 
this time, the Gila chub remains listed under the ESA.
    The narrow-headed gartersnake was listed as threatened in 2014 
(July 8, 2024; 79 FR 38678). Historically, narrow-headed gartersnakes 
occupied perennial drainages across the Mogollon Rim, from northern and 
eastern Arizona into southwestern New Mexico. The species remains in 
relatively dense populations only in the Tularosa River and Middle Fork 
of the Gila River in New Mexico, and in Oak Creek and West Fork Oak 
Creek in Arizona. Narrow-headed gartersnakes are believed to persist in 
other locations; however, information on other populations is less 
certain due to a lack of adequate survey effort and data. The most 
significant threat to narrow-headed gartersnake is nonnative species.
    The proposed CBA is part of a management plan developed by the 
applicant in response to the Service's proposed critical habitat 
designation for spikedace and loach minnow in 2011, which included 
portions of Eagle Creek and the San Francisco River in Arizona (the 
designation has since been finalized). The applicant requested that 
their private lands along Eagle Creek and the San Francisco River in 
Arizona be excluded from the critical habitat designation because of 
the conservation commitments in their proposed management plan. Within 
the management plan, the applicant committed to native fish monitoring, 
a nonnative species removal study, and investigation and construction 
of a fish barrier on Eagle Creek, as well as completion of a safe 
harbor agreement (now called a conservation benefit agreement, or CBA).
    The Service accepted the management plan in lieu of designation of 
the applicant's lands on Eagle Creek and the San Francisco River. 
Subsequently, costs of barrier construction exceeded those included in 
the management plan. To allow for project completion, Reclamation 
entered into a cooperative relationship with the applicant and the 
Service to evaluate the financial and technical feasibility of fish 
barrier construction. Under this partnership,

[[Page 331]]

Reclamation became the project lead for the design, construction, 
operation, and maintenance of the barrier.
    The proposed CBA was developed in coordination with the Service. 
The purpose of the proposed CBA is to implement population restoration 
activities for spikedace, loach minnow, Gila chub, and narrow-headed 
gartersnake through construction of a nonnative fish barrier at Eagle 
Creek. The upper reach of Eagle Creek is a high-value stream for native 
fish species because of its lack of nonnative species and its favorable 
hydrological conditions, including water quality and quantity. However, 
several nonnative species known to be detrimental to native fish 
communities occur in downstream reaches of Eagle Creek and the Gila 
River, including smallmouth bass (Micropterus dolomieui), channel 
catfish (Ictalurus punctatus), flathead catfish (Pylodictis olivaris), 
yellow bullhead (Ameiurus natalis), red shiner (Cyprinella lutrensis), 
and green sunfish (Lepomis cyanellus).
    Under the CBA, a nonnative fish barrier would be constructed on 
lands belonging to the applicant to protect upper Eagle Creek against 
possible future incursions of nonnative aquatic species and allow for 
augmentation of existing populations. This area is currently not 
protected against nonnative species invasion. In addition, the 
applicant would implement conservation measures, including native 
species monitoring and a nonnative species removal study. Barrier 
construction will increase the suitability of Eagle Creek for species 
management and augmentation efforts, which are important to the 
species' survival and recovery. Invasion of occupied habitats by 
nonnative species is identified as a primary threat for all four of the 
covered species. Construction of the barrier and implementation of the 
proposed conservation and management measures are expected to provide a 
net conservation benefit to the Covered Species.
    Given the current status of the Covered Species in Eagle Creek and 
below the fish barrier site, we anticipate incidental take is unlikely 
to occur. However, if the Covered Species are present, they could be 
incidentally taken during fish barrier construction and as a 
consequence of the Permittee's management actions and land and water 
use activities within the Covered Area. However, the Permittee has 
agreed to leaving the barrier in place, even should the CBA be 
discontinued, resulting in continued protection of the area most likely 
to be occupied by the Covered Species, which will provide long-term 
protection for the Covered species. The likelihood of incidental take 
may increase if populations of the Covered Species increase above the 
fish barrier or if Covered Species are reintroduced and re-establish 
above the fish barrier in Eagle Creek or in tributaries such as East 
Eagle Creek. If this reintroduction or re-establishment were to occur, 
this would create the possibility that individuals of the Covered 
Species may move or be washed downstream into areas within the Covered 
Area where the Permittee's facilities and other infrastructure exist. 
In that event, individuals of the Covered Species could become 
entrained in the Permittee's water diversion and pumping facilities, 
resulting in deaths or injuries. We anticipate this type of incidental 
take, should it occur, will involve small number of individuals, and 
that the larger number of individuals occupying those portions of Eagle 
Creek above the barrier will result in a net conservation benefit for 
the species.

Alternatives

    We are considering one alternative to the proposed action as part 
of this process, the No Action Alternative. Under No Action 
Alternative, the Service would not issue the permit, the CBA would not 
be implemented, and the applicant would continue the existing operation 
and maintenance activities on their properties. The applicant would 
continue to implement conservation actions within the management plan.

Next Steps

    We will evaluate the permit application, CBA, draft EA, and 
comments we receive to determine whether the CBA application meets the 
requirements of the ESA, NEPA, and implementing regulations. If we 
determine that all requirements are met, we will approve the CBA and 
issue the permit under section 10(a)(1)(A) of the ESA to the applicant, 
in accordance with the terms of the CBA and specific terms and 
conditions of the authorizing permit. We will not make our final 
decision until after the 30-day comment period ends and we have fully 
considered all comments received during the public comment period.

Public Availability of Comments

    All comments we receive become part of the public record associated 
with this action. If you submit a comment at https://www.regulations.gov, your entire comment, including any personal 
identifying information, will be posted on the website. If you submit a 
comment that includes personal identifying information, such as your 
address, phone number, or email address, 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. Moreover, 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, will be made available for public disclosure in their 
entirety.

Authority

    We provide this notice under the authority of section 10(c) of the 
ESA and its implementing regulations (50 CFR 17.22 and 17.32) and NEPA 
(42 U.S.C. 4321 et seq.) and its implementing regulations (40 CFR parts 
1500 through 1508 and 43 CFR part 46).

Amy Lueders,
Regional Director, Southwest Region, U.S. Fish and Wildlife Service.
[FR Doc. 2024-31519 Filed 1-2-25; 8:45 am]
BILLING CODE 4333-15-P
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