Record of Decision for Issuance of an Endangered Species Permit To Allow Incidental Take of the Endangered Karner Blue Butterfly in Wisconsin

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

Record of Decision for Issuance of an Endangered Species Permit

To Allow Incidental Take of the Endangered Karner Blue Butterfly in

Wisconsin

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Record of decision.

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SUMMARY: Notice is hereby given that the Fish and Wildlife Service

(Service) has decided to issue a permit to allow incidental take of the

endangered Karner blue butterfly (Lycaeides melissa samuelis) within

the State of Wisconsin. The permit is issued under the authority of

section 10(a) of the Endangered Species Act of 1973, as amended (ESA),

for a duration of 10 years. Issuance of this permit allows for

implementation of the Statewide Habitat Conservation Plan (HCP) for

Karner Blue Butterfly in Wisconsin. Alternative A, as analyzed by the

Environmental Impact Statement (EIS), allows for implementation of a

consolidated, statewide plan designed to conserve butterfly habitat

while carrying out otherwise lawful land use activities on public and

private lands. The lead applicant is the Wisconsin Department of

Natural Resources (DNR). In addition, 25 Partners to the HCP will work

together to implement this plan. This decision is based upon

information and analysis found in the HCP, Implementing Agreement,

Partner Species and Habitat Conservation Agreements, EIS, and comments

from the public on the HCP/EIS. This Record of Decision was prepared in

accordance with the Council on Environmental Quality Regulations (40

CFR 1505.2).

SUPPLEMENTARY INFORMATION:

Background

The listing of the Karner blue butterfly on December 14, 1992, and

the attending prohibition on ``take'' of the butterfly or its habitat

posed a restraint on many land uses and land management activities in

Wisconsin. In order to avoid violation of Section 9 of the ESA, non-

Federal landowners must obtain a Section 10(a)(1)(B) permit to

authorize incidental take of Federally listed species. Beginning in

1994, the DNR spearheaded an effort to address land use issues

throughout Wisconsin through the development of a statewide HCP.

On April 1, 1999, the Service received an application for an

incidental take permit under the ESA from the Wisconsin DNR. The

application was submitted on behalf of a partnership of 26 landowners

that include state agencies, county forest departments, industry, a

conservation organization, and others. In accordance with the

regulations, an HCP accompanied the permit application. In addition,

the DNR prepared the EIS that accompanied this HCP, in coordination

with the Service. A Federal Register Notice announcing receipt of the

permit application, and soliciting comments on the application, was

published on April 14, 1999. In addition, notices regarding the

availability of the draft and final EIS were published on April 16, May

7, and July 2, 1999. Seven comments were received during the public

interest review and responses to those comments were incorporated into

the final EIS.

Description of Proposal

The application for an incidental take permit (ITP) seeks

authorization for take of the Karner blue butterfly in

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conjunction with a variety of land use and land management activities

throughout the species range in Wisconsin. These activities include

forestry practices, utility right-of-way management, transportation

management, agricultural practices, recreation management, and barrens,

prairie, and savanna management. A strong commitment to adaptive

management and monitoring provides for changing practices over time to

ensure long-term conservation of the species. In addition, the HCP

incorporates an innovative Participation Plan that allows other

landowners to become party to the permit and encourages private

landowner participation in conservation of the Karner blue butterfly on

a voluntary basis.

The project area encompasses the entire State of Wisconsin.

However, the High Potential Range of the butterfly encompasses 7

million acres within Wisconsin, and that is the area where there is a

potential to ``take'' the butterfly. Within that range, partners have

established a goal of no-net-loss (and possibly a gain) of suitable

Karner blue butterfly habitat which will be accomplished with a variety

of conservation strategies. Management of forestry tracts, for example,

will include pre-treatment surveys to determine whether butterflies are

present and, if present, treatments such as cutting or removal of

understory will be carried out to allow for the movement of butterflies

into newly created early successional habitat. In other words, new

habitat will become available for occupation as the older forest

becomes less suitable. The effect of this type of forestry management

will be to create a shifting mosaic of habitat capable of supporting

the butterfly. Another example of a conservation strategy designed to

enhance conservation of Karner blue butterflies involves managing of

utility rights-of-way. In these circumstances, butterflies are

conserved by mowing at certain heights that minimize harm to eggs or

larva or by restricting use of certain types of pesticides that are

more harmful to lepidopterans. Through changing techniques for managing

the R-O-W corridors, the utility partners have minimized harm to the

butterfly and, in many cases, will create or maintain habitat that is

needed for their existence in those R-O-Ws. Overall, a variety of

conservation strategies serve to create a disturbance dependent

landscape that must exist for the continued survival of this species.

The DNR is the lead applicant for this effort and is committed to

providing administrative oversight during implementation of this HCP.

Twenty-five partners to the HCP have entered into legally binding

Species and Habitat Conservation Agreements (SHCA) with the DNR. These

SHCAs outline the conservation and/or recovery measures that each

Partner will take to reach the goals of the HCP. In addition, the DNR

has developed an SHCA to outline what will be done on DNR properties to

both conserve and recover the butterfly. Processes for inclusion of

future partners are included in the HCP. The ITP application requested

a permit for a 10-year period.

The HCP was submitted in accordance with the regulations at 50 CFR

Part 17.22(b)(1)(iii). The Service determined that the HCP met

statutory requirements and based its decision to issue an ITP on the

following analysis.

ESA Section 10(a)(2)(A) HCP Criteria

1. The Impact That Will Likely Result From Such Taking

The HCP/EIS, Implementing Agreement, and associated SHCAs

adequately describe the proposed activities and the anticipated impact

on the Karner blue butterfly and its habitat within the project area.

Due to the nature of the species, disturbance of the landscape is

necessary for continued survival. The activities that are anticipated

to take the butterfly will be the same activities that will ensure

availability of suitable habitat. In other words, the take of

individuals will occur during land management/land disturbance

activities, but the disturbance must occur for the habitat to remain

suitable. The Karner blue butterfly will benefit at a population level

at those sites in spite of the take of individuals during the

manipulation of the landscape. Failure to manage habitats across the

Wisconsin landscape would actually result in loss of Karner blue

butterflies due to loss of their habitat through natural succession.

The HCP and SHCAs provided sufficient information for the Service to

evaluate the impacts of the proposed activities. The Service's analysis

of the project impact is described its Biological Opinion on the

issuance of an Incidental Take Permit, dated September 16, 1999.

2. The Steps That Will Be Taken To Monitor, Minimize, and Mitigate Such

Impacts, The Funding That Will Be Available To Implement Such Steps,

and the Procedures To Be Used To Deal With Unforeseen Circumstances

The applicant's HCP, along with the partner SHCA's, provide

measures to avoid or minimize harm to individuals, mitigation measures

to compensate for unavoidable losses, and a monitoring program to

assure that suitable habitat is maintained to achieve a goal of no-net-

loss throughout the documented range in Wisconsin. The HCP provides

adequate funding and includes measures to ensure implementation of the

HCP components.

Conservation measures include management of forest habitats in a

manner that creates a shifting mosaic of available habitat, management

of rights-of-way to minimize harm to individuals during mowing and

pesticide application, and creation of suitable habitats across the

landscape which contribute to recovery of the Karner blue butterfly. In

addition, manipulation of existing Karner blue butterfly habitat in a

manner that does not allow for regeneration must meet certain criteria.

Larger landowners, for example, must mitigate for permanent loss of

habitat.

In order to assure that the goal of no-net-loss is achieved, the

DNR and HCP Partners have designed a monitoring program that will

measure the outcome of land treatments through pre-treatment surveys

and post-treatment surveys, research, and annual monitoring of a

representative sample of all known element occurrences of the Karner

blue butterfly. The DNR is prepared to share Natural Heritage Data with

the Service and the Service will be fully able to participate in

oversight activities, site visits, and HCP committee activities as the

DNR and Partners move into implementation of this HCP. If the expected

outcome of land management activities is not met (i.e., no-net-loss),

the HCP Partnership is committed to using adaptive management to

address the need to change their activities to be consistent with

conservation of the butterfly.

The treatment of unforeseen circumstances in the HCP is consistent

with the Service's Habitat Conservation Plan Assurances (``No

Surprises'') Rule, dated February 23, 1998.

3. Alternative Actions To The Taking the Applicant Considered and the

Reasons Such Alternatives Are Not Proposed To Be Utilized

Alternatives to the proposed project are described in the HCP. Due

to the nature of the project (consolidated, statewide plan),

alternatives other than a statewide HCP were limited to an HCP with

mitigation banking, a reduced scope HCP and no action. The DNR took the

lead to develop a statewide plan, along with multiple partners, to

enable Wisconsin to conserve this species on a scale that will provide

for more long-

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term benefits and regulatory certainty to the citizens of Wisconsin.

All of the other alternatives would result in the processing of

multiple permits by the Service, in response to multiple landowner

needs. Alternatives to the proposed project would either not accomplish

the anticipated benefit that will be gained as a result of large-scale

conservation effort, or were more injurious to Karner blue butterflies

through lack of action (disturbance) on the landscape. As described

above, the Karner blue butterfly is dependent upon a landscape that

requires disturbance. Since natural processes such as fire are not part

of today's landscape, the habitat must be actively managed to maintain

an early successional component for this species. The no action

alternative would result in long-term harm to the butterfly population

due to the habitat becoming unsuitable over time.

4. Other Measures That The Director May Require as Being Necessary or

Appropriate for the Purposes of the Plan

The HCP Partnership worked closely with the Service in developing

this HCP. Over a period of five years, the Service was able to provide

input on appropriate conservation measures, minimization of take, steps

to promote recovery, and legal and regulatory matters. The Partnership

incorporated recommended measures designed to conserve the Karner blue

butterfly, including adaptive management and monitoring to ensure that

anticipated goals are achieved. Mitigation will compensate for losses

and the minimum expected outcome is no-net-loss of available habitat

over the 10-year permit period. Positive outreach and education efforts

are expected to provide a net increase in available habitat over time,

although this has not been ``guaranteed'' due to the voluntary nature

of the strategy to involve private citizens. A follow-up evaluation of

this private landowner strategy will be conducted after the HCP has

been in its implementation phase for three years.

In addition to the requirements that an applicant's Habitat

Conservation Plan must meet, the Service is responsible to assure that

certain criteria found at 50 CFR 17.22 (b)(2) are met, prior to issuing

an incidental take permit. The following paragraphs summarize the

Service's findings relative to ITP issuance criteria.

ESA Section 10(a)(1)(B) Permit Issuance Criteria

1. The Take Will Be Incidental

The Service finds that the take will be incidental to otherwise

lawful activities, including forestry, utility right-of-way management,

transportation corridor management, and other lawful activities as

reviewed above. In addition, take of individuals will be primarily in

the context of habitat manipulation that is beneficial to the long term

survival of this species. Absent disturbance, the habitat will become

unsuitable due to natural succession.

2. The Applicant Will, to the Maximum Extent Practicable, Minimize and

Mitigate the Impacts of the Taking

The Partners to the HCP have committed to a wide variety of

conservation measures, outreach activities, adaptive management, and

other strategies designed to minimize harm to the species and mitigate

for any unavoidable losses. Take of the butterfly will primarily occur

in a manner that can be characterized as ``short-term'' take, or

temporary disturbance of habitat that results in habitat improvement

for the butterfly. Disturbance of the landscape will occur in a pattern

designed to create a shifting mosaic of suitable Karner blue butterfly

habitat over time. ``Permanent take,'' in the form of habitat

destruction, will be mitigated. The Service's biological opinion

authorized this type of take at a level considered to be reasonable

with the expectation that not much ``permanent take'' will occur under

this ITP. The Service finds that the HCP Partnership has met this

criterion under the Act and has provided for mitigation and

minimization of take to the full extent requested.

3. The Applicant Will Ensure That Adequate Funding for the HCP and

Procedures To Deal With Unforeseen Circumstances Will Be Provided

The HCP Partnership is committed to funding implementation of this

Plan. The State of Wisconsin, Department of Natural Resources, has

pledged to seek funding through their budget processes and has assured

the Service that they will continue to fund HCP implementation to the

extent that the State Legislature appropriates funds. The DNR has hired

a full-time HCP Coordinator to oversee the HCP. Twenty-five other

partners have committed to funding specific measures that are

inumerated in their Species and Habitat Conservation Agreements. During

the development of this HCP, the DNR and partners committed dollars not

only in staff time, but in funding of research for development of

protocols, funding of educational materials, and other activities.

The Service's HCP Assurances (``No Surprises'') rule is discussed

in the HCP and measures to address changed and unforeseen circumstances

have been identified. Adaptive management and monitoring will be

implemented to address changes over the life of the permit;

coordination mechanisms are in place to address changed circumstances

that could be anticipated at the time of HCP development. Unforeseen

circumstances would necessitate coordination between the Service and

the DNR. The DNR has committed to a coordination process to address

such circumstances.

The Service has, therefore, determined that the Partnership's

financial commitment(s), along with their willingness to address

changed and unforeseen circumstances in a cooperative fashion, is

sufficient to meet this criterion.

4. The Take Will Not Appreciably Reduce the Likelihood of the Survival

and Recovery of the Species in the Wild

The issuance of this permit has been reviewed by the Service under

Section 7 of the Act. The biological opinion rendered a determination

that issuance of this ITP will not jeopardize the continued existence

of the Karner blue butterfly in the wild. The take that is authorized

through the Incidental Take Permit will be largely unquantifiable due

to the nature of the action, that is, ``short term'' taking associated

with habitat disturbance. However, survival and recovery of this

species would be impossible absent habitat disturbance since the

species depends on an early successional plant community. Any

permanent, long-term take will be mitigated. The level of permanent

take has been set at a threshold that the Service has determined is

reasonable.

5. Other Measures the Secretary May Require as Being Necessary or

Appropriate for the Purposes of This Plan Have Been Met

The Service and the Office of the Field Solicitor, U.S. Department

of the Interior, were involved in early discussions regarding the HCP,

Implementing Agreement, and partner SHCAs. The Service commented on

draft documents, participated on the HCP team and subteams during the

development phase, and worked closely with the DNR to assure that

conservation of the species would be assured and recovery would not be

jeopardized. The HCP incorporates Service recommendations for

minimization and mitigation, as well as steps to monitor the effects of

this HCP and ensure success. Annual monitoring and reporting mechanisms

have been designed to ensure that changes to

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management strategies can be implemented if the outcome of proposed

management regimes is inconsistent with the HCP goals for the species.

It is the Service's position that no additional measures are required

to implement the intent and purpose of the HCP.

National Environmental Policy Act Determination and Public Comment

An Environmental Impact Statement (EIS) was prepared to accompany

this HCP due to the large scale of the effort and the Service's

determination that this HCP was precedent setting. The EIS analyses the

Proposed HCP and No Action alternatives in detail. The EIS describes

the process that was followed to develop the HCP, including the input

of partners and the interested public.

A Notice of Intent to prepare an EIS was announced in the Federal

Register on June 5, 1995. Public scoping meetings followed at three

locations in Wisconsin. The DNR also provided avenues for public

involvement in the planning process and development of the HCP. Many

interests were represented throughout the development process. Once the

ITP application was received by the Service, an announcement of

availability of the draft EIS was made in the Federal Register on April

16, 1999. The Service's permit requirements also call for announcement

of availability of permit applications. Therefore, a more detailed

announcement was made in the April 14, 1999, Federal Register which

included a description of the proposed HCP and the EIS and included a

web site address for complete documentation. Several hundred copies of

the HCP/EIS were distributed to interested parties, including those

that had expressed an interest during the development phase. An

additional four requests for the HCP/EIS were received as a result of

the announcement of availability of the drafts. Seven comment letters

were received during the public review period and responses to the

comments have been incorporated into the document(s). The announcement

of the final EIS was made on July 2, 1999.

Based on the findings described in this record of decision, the

Service has decided to issue an ESA Section 10(a)(1)(B) Incidental Take

Permit to the Wisconsin Department of Natural Resources and HCP

Partnership for a period of 10 years.

Dated: September 27, 1999.

William F. Hartwig,

Regional Director, Region 3, U.S. Fish and Wildlife Service, Fort

Snelling, Minnesota.

[FR Doc. 99-25535 Filed 10-1-99; 8:45 am]

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