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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-25535

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** October 4, 1999
- **Citation:** 64 FR 53683

## Text

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

[[Page 53684]]

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-

[[Page 53685]]

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

[[Page 53686]]

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]
BILLING CODE 4310-55-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-25535. Public record. Not legal advice.