Environmental Assessment Regarding Proposed Issuance of an Incidental Take Permit to the Burlington Northern and Sante Fe Railway Company on Lands in the Middle Fork Flathead River Corridor

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of intent to prepare an Environmental Assessment; notice of public scoping meetings.

SUMMARY:

Pursuant to the National Environmental Policy Act (NEPA) of 1969, as amended, the Fish and Wildlife Service (Service) intends to prepare an Environmental Assessment (EA). The EA will address the proposed issuance of a Permit to allow take of grizzly bears incidental to rail operations between Browning (milepost 1123.9) and Conkelley (milepost 1208.7), Montana.

The proposed Permit will authorize take of grizzly bear, a federally listed threatened species, in accordance with the Endangered Species Act of 1973, as amended, and other species of concern should they become listed in the future.

The Burlington Northern and Santa Fe Railway Company (BNSF) is preparing a Habitat Conservation Plan (HCP) as part of an application for the Permit. The HCP will address the effects to grizzly bears of BNSF's railroad operations on approximately 137 kilometers (85 miles) of railroad right-of-way. The Service is furnishing this Notice to advise other agencies and the public of our intentions and to announce the initiation of a 45-day scoping period during which other agencies and the public are invited to provide written comments on the scope of the issues and potential alternatives to be included in the EA.

Pursuant to the NEPA, 42 U.S.C. 4321 et seq., and its implementing regulations, 40 CFR 1500.0, et seq., BNSF and the Service jointly announce their intent to prepare an EA for the proposed action of reviewing and approving the proposed HCP and issuing an incidental take permit. The BNSF and the Service also jointly announce their intent to hold scoping meetings, the date, time, and place of which are provided in this notice below. This notice is provided pursuant to section 10(c) of the Endangered Species Act, 16 U.S.C. 1531 et seq., and NEPA implementing regulations, 40 CFR 1506.6.

DATES:

Scoping will commence as of February 11, 2004. Written comments on the scope of the proposed action, the approval of a HCP and the concomitant issuance of the Permit should be received on or before March 29, 2004. Three scoping meetings will be held, on the following dates—February 10, 11, and 12, 2004. Each meeting will run from 4 p.m. until 8 p.m. The BNSF and the Service will use an open-house format for the meetings, allowing interested members of the public to attend at any point during the meetings to gather information and/or provide comments.

ADDRESSES:

Meeting locations are scheduled as follows—February 10, 2004, Montana Fish, Wildlife and Parks, 490 N. Meridian Road, Kalispell, Montana; February 11, 2004, Middlefork Quick Response Building, Highway 2, Essex, Montana; February 12, 2004, Blackfeet Tribal Complex, Government Square, Tribal Conference Room, Browning, Montana. Written comments regarding the proposed action and the proposed EA should be addressed to Tim Bodurtha, Supervisor, U.S. Fish and Wildlife Service, 780 Creston Hatchery Road, Kalispell, Montana 59901.

FOR FURTHER INFORMATION CONTACT:

Tim Bodurtha, U.S. Fish and Wildlife Service, 780 Creston Hatchery Road, Kalispell, Montana 59901, (406) 758-6882, facsimile (406) 758-6877, e-mail FW6_BNSF_ScopingHCP@fws.gov, or Michael Perrodin, BNSF Environmental Operations Manager, 235 Main Street, Havre, Montana 59501, (406) 265-0483, facsimile (406) 265-0356.

SUPPLEMENTARY INFORMATION:

The Endangered Species Act and its implementing regulations prohibit the taking of threatened and endangered species. The term “take” is defined under the Endangered Species Act to mean to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any such conduct. Harm is defined by the Service to include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, sheltering, spawning, rearing, and migrating.

The Service, under certain circumstances, may issue permits to take listed animal species if such taking is incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for threatened or endangered species are found at 50 CFR 17.22 and 50 CFR 17.32.

Background

The railroad, which traverses the Middle Fork Flathead River corridor, is a portion of the original Great Northern Railway that began operations in 1878. The mainline, from Minneapolis to Seattle, was completed in 1893. Through subsequent mergers, the Great Northern became part of the Burlington Northern Railroad and eventually part of the BNSF. Today, BNSF operates a modern railroad through the corridor. The track is continuous welded rail, traffic is centrally controlled, and operations are computerized. Current rail traffic through the corridor is about 30 freight trains and 2 passenger trains (operated by Amtrak) per day. Depending on market conditions, daily traffic may be as high as 50 freight trains.

The grizzly bear was listed as a threatened species, pursuant to the Endangered Species Act, in 1975. The original Grizzly Bear Recovery Plan was approved in 1982, and a revised plan was approved in 1993. The Middle Fork Flathead River corridor lies within the Northern Continental Divide Grizzly Bear Recovery Zone. Among other objectives, the Grizzly Bear Recovery Plan includes objectives to reduce accidental deaths of bears and minimize activities that result in attraction of bears to sites of conflict.

Railroad operation is one cause of accidental grizzly bear deaths in the Middle Fork Flathead River corridor. Mortalities have occurred because the railroad right-of-way crosses several natural bear movement corridors. Section 10(a)(2)(B) of the Endangered Species Act contains provisions for the issuance of incidental take permits to non-Federal landowners for the take of endangered and threatened species, provided the take is incidental to otherwise lawful activities and will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. An applicant for a Permit under section 10 of the Endangered Species Act must prepare and submit to the Service for approval, a Conservation Plan (commonly known as HCP) containing a strategy for minimizing and mitigating the impacts of the take on listed species associated with the proposed activities to the maximum extent practicable. The applicant also must ensure that adequate funding for the Conservation Plan will be provided.

The BNSF initiated discussions with the Service regarding the development of a HCP and obtaining a Permit. During this process, BNSF intends to employ the Service's technical assistance and assistance of local wildlife biologists.

The BNSF proposes to develop the HCP to achieve conservation of the grizzly bear by minimizing the potential for grizzly bear-train collisions and mitigating for the consequences of unavoidable grizzly bear-train collisions.

As currently envisioned, the HCP would involve a multi-year Permit covering approximately 137 kilometers (85 miles) of railroad right-of-way through the Middle Fork Flathead River Corridor, from Conkelley east to Browning, Montana. The BNSF is currently considering a term of 25 years. The Service specifically requests comment on the term of a permit.

In 1991, the BNSF entered into an agreement with the State and Federal agencies that have relevant jurisdiction in the Middle Fork Flathead River Corridor to form the Great Northern Environmental Stewardship Area (GNESA). The GNESA fosters a positive working relationship among industry, government, and conservation interests. The cooperators recognize that the Middle Fork Flathead River corridor is an area with unique natural values. They also recognize that commerce has an important place in the area. Accordingly, they seek to promote proper stewardship so that these two aspects are compatible. In addition to BNSF, the GNESA cooperators include the Flathead National Forest; Lewis and Clark National Forest; Glacier National Park; U.S. Fish and Wildlife Service; Blackfeet Indian Nation; Montana Fish, Wildlife and Parks; Montana Department of Natural Resources and Conservation; Montana Department of Transportation; Flathead County; Glacier County; the Great Bear Foundation; the Flathead Land Trust; The Nature Conservancy; and, two citizen members.

The BNSF has indicated that the HCP will emphasize conservation of grizzly bears. The BNSF also has indicated that they will develop and implement the HCP in close cooperation with GNESA and its member agencies. This approach will ensure that the HCP is well coordinated with other conservation programs that are currently in place in the Middle Fork Flathead River Corridor.

For the proposed HCP, the BNSF will develop specific conservation measures to be implemented within the framework of existing railroad operations and/or in cooperation with conservation programs for which another GNESA member agency has primary responsibility.

In cooperation with GNESA, the BNSF has implemented an operating protocol that includes several railroad operation and maintenance procedures intended to minimize train-bear incidents and ensure a rapid response and removal of attractants from the railroad right-of-way. In addition to the protocol, the GNESA agreement includes the provision for developing a $1 million conservation trust fund for the purpose of assisting the GNESA cooperators to implement a variety of grizzly bear conservation activities in the Middle Fork Flathead River corridor. The BNSF anticipates that the HCP will update and build upon this existing agreement.

As currently envisioned, the HCP will incorporate active adaptive management features, with an emphasis on documenting all human-caused grizzly bear mortality in the corridor, evaluating factors that contribute to each mortality, and evaluating methods to reduce the potential for human-caused mortality. Applied research and monitoring will help determine the effectiveness of the HCP, validate models used to develop the HCP, and provide the basic information used to implement “mid-course corrections” if necessary.

The Service will conduct an Environmental Review of the proposed HCP and prepare an EA. The Environmental Review will analyze the proposal as well as a full range of reasonable alternatives and the associated impacts of each. The Service and BNSF are currently in the process of developing alternatives for analysis. The scoping process will be used to identify reasonable alternatives in addition to the No Action alternative.

The Environmental Review of this project will be conducted in accordance with the requirements of the NEPA (42 U.S.C. 4321 et seq.), Council of Environmental Quality regulations (40 CFR parts 1500-1508), other appropriate Federal laws and regulations, and policies and procedures of the Service for compliance with all of the above-mentioned regulations. It is estimated that the draft EA will be available for public review during the third quarter of calendar year 2004.

Comments and suggestions are invited from all interested parties to ensure that all significant issues are identified and the full range of issues related to the proposed action are addressed. Comments or questions concerning this proposed action and the Environmental Review should be directed to the Service (see ADDRESSES).