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###### Department of the Interior

###### Fish and Wildlife Service

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice. 

# SUMMARY:

                        Cyanotech Corporation (Cyanotech) has applied to the Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The Service proposes to issue a 3-year permit to Cyanotech that would authorize take (harm, harassment, death or injury) of the endangered Hawaiian stilt, (                        *Himantopus mexicanus knudseni*) incidental to otherwise lawful activities. Such take would occur as a result of ongoing operation and maintenance of Cyanotech Corporation's acquaculture facility at Keahole Point on the island of Hawaii.                    

We request comments from the public on the permit application which includes a Habitat Conservation Plan (HCP) for the Hawaiian stilt. We also request comments on our preliminary determination that the Cyanotech HCP qualifies as a “low-effect” habitat conservation plan, eligible for a categorical exclusion under the National Environmental Policy Act.

# DATES:

Written comments should be received on or before February 1, 2002.

# ADDRESSES:

Comments should be addressed to Mr. Paul Henson, Field Supervisor, U.S. Fish and Wildlife Service, P.O. Box 50088, Honolulu, Hawaii 96850; facsimile (808) 541-3470.

# FOR FURTHER INFORMATION CONTACT:

Ms. Gina Shultz, Supervisory Fish and Wildlife Biologist, at the above address or telephone (808) 541-3441.

# SUPPLEMENTARY INFORMATION:

## Document Availability

Cyanotech's permit application and associated HCP, and the Service's Environmental Action Statement, are available for public review. The HCP describes the existing conditions at the Cyanotech aquaculture facility and the proposed measures that Cyanotech would undertake to minimize and mitigate take of the Hawaiian stilt. The Environmental Action Statement describes the basis for the Service's preliminary determination that the Cyanotech HCP qualifies as a low effect plan eligible for a categorical exclusion from further documentation under the National Environmental Policy Act.

You may obtain copies of the documents from review by contacting the office named above. You also may make an appointment to view the documents at the above address during normal business hours. All comments we receive, including names and addresses, will become part of the administrative record and may be released to the public.

## Background

Section 9 of the Act and its implementing regulations prohibit the “take” of threatened or endangered species. Take is defined under the Act to include harass, harm, pursue, hunt shoot, wound, kill, trap, capture, or collect listed animal species, or attempt to engage in any such conduct (16 U.S.C. 1538). Harm includes significant habitat modification where it actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering 50 CFR 17.3(c). Under limited circumstances the Service may issue permits to take listed species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for threatened and endangered species are found in 50 CFR 17.32 and 50 CFR 17.22, respectively.

                    Cyanotech cultivates and harvests microalgae for commercial sale. The Cyanotech facility currently occupies approximately 90 acres of land and includes a series of man-made ponds or “raceway ponds” where the microalgae is grown; office and maintenance buildings; and laboratory, research, and processing buildings. The nutrient rich ponds support high-density invertebrate populations, a primary food source for the endangered Hawaiian stilt. Stilts are attracted to and nest within and adjacent to the aquaculture facility. Hawaiian stitl chicks that hatch at the facility are led by parents stilts to the ponds to feed where they are suspected either of drowning in the rapidly flowing waters or dying from adverse physiological reactions (e.g., acute dehydration) associated with ingestion of the hypersaline, high-alkaline                           ( print page 99)                        conditions of the alga medium required for production. Cyanotech's aquaculture operation thus inadvertently attracts stilts to a man-made habitat that is unsuitable for successful stilt reproduction.                

Under the HCP, Cyanotech would minimize incidental take of the Hawaiian stilt by implementing deterrence measures designed to eliminate stilt foraging and nesting at the Cyanoteck Facility. The following non-lethal deterrence measures would be evaluated and may be implemented: (1) reduce or eliminate the invertebrate food source, (2) reconfigure raceway ponds to make them unattractive to the Hawaiian stilt, (3) net ponds to exclude Hawaiian stitl, (4) use biodegradable repellents, and (5) implement various hazing methods. Cyanotech will mitigate for incidental take of Hawaiian stilt eggs and chicks by creating suitable nesting habitat onsite. These measures would ensure (1) positive Hawaiian stilt reproductive success, (2) recruitment of fledged birds into the overall population, and (3) that the Cyanotech facility does not become a reproductive sink for stilts.

The Service's Proposed Action consists of the issuance of an incidental take permit and implementation of the HCP, which includes measures to minimize the incidental take of Hawaiian stilt eggs, chicks, subadults, and adults, and measures to mitigate any incidental take of Hawaiian stilts eggs and chicks at the Cyanotect facility. The four alternatives to the proposed alternative considered in the HCP are: (1) No Action, (2) Long-term Management Off Site, (3) Haze/Fee, and (4) Integrated Management Approach.

Under the No Action Alternative, no permit would be issued. Cyanotech would continue its microalgae operation without an HCP to address take of the Hawaiian stilt. Cyanotech did not select this option as it would be in violation of Section 9 of the Act.

Under the Long-term Management Off Site Alternative, Cyanotech would contribute funds to create, restore, or enhance habitat for Hawaiian stilt at an off site location. This alternative would provide mitigation for take of the Hawaiian stilt however, Cyanotech did not select this alternative due to the prepetutation of incidental take that would be caused by continued foraging and nesting of stilts at the Cyanotech facility.

Under the Haze/Fee Alternative, Cyanotech would haze Hawaiian stilts using non-lethal deterrents. This alternative may minimize take, however, Cyanotech did not select this alternative because hazing birds from a site has not proven effective as a long-term solution and would likely result in a long-term commitment of resources without reducing stilt numbers at the Cyanotech facility.

Under the Integrated Management Approach Alternative, Cyanotech would implement non-lethal bird deterrence, manage protected nesting habitat for 1 year only, and reallocate funds from on-site management to an off-site mitigation fund in years 2 and 3. Cyanotech did not select this alternative due to the unconditional closure of the on-site protected habitat after 1 year and the desire for flexibility provided by adaptive management.

The Service has made a preliminary determination that the Cyanotech HCP qualifies as a “low-effect” plan as defined by its Habitat Conservation Planning Handbook (November 1996). Our determination that a habitat conservation plan qualifies as a low-effect plan is based on the following three criteria: (1) Implementation of the plan would result in minor or negligible effects on federally listed, proposed, or candidate species and their habitats; (2) implementation of the plan would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the plan, considered together with the impacts of other past, present and reasonable foreseeable similarly situated projects would not result, over time, in cumulative effects to environmental values or resources which would be considered significant. As more fully explained in our Environmental Action Statement, Cyanotech's HCP for the Hawaiian stilt qualifies as a “low-effect” plan for the following reasons:

1. Approval of the HCP would result in minor or negligible effects on the Hawaiian stilt. The Service does anticipate significant direct or cumulative effects to the Hawaiian stilt from Cyanotech's microalgae operation.

2. Approval of the HCP would not have adverse effects on unique geographic, historic, or cultural sites, or involve unique or unknown environmental risks.

3. Approval of the HCP would not result in any cumulative or growth inducing impacts and, therefore would not result in significant adverse effects on public health or safety.

4. The HCP does not require compliance with Executive Order 11998 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or Fish and Wildlife Coordination Act, nor does it threaten or violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment.

5. Approval of the HCP would not establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects.

We provide this notice pursuant to section 10(c) of the Act and pursuant to implementing regulations for the National Environmental Policy Act (40 CFR 1506.6). We will evaluate the permit application, HCP, and comments submitted thereon to determine whether the permit application meets the requirements of section 10(a) of the Act and National Policy Act regulations. If we determine that the requirements are met, we will issue a permit under section 10(a)(1)(B) of the Act to Cyanotech for take of Hawaiian stilt incidental to otherwise lawful activities in accordance with the HCP. We will fully consider all comments received during the comment period and will not make our final decision until after the end of the 30-day comment period.

Dated: December 18, 2001.

Rowan W. Gould,

Deputy Regional Director, Fish and Wildlife Service, Portland, Oregon.

[FR Doc. 01-32142  Filed 12-31-01; 8:45 am]

BILLING CODE 4310-55-M