05-1287. Availability of an Environmental Assessment and Receipt of an Application for an Incidental Take Permit for the Lamont Public Utility District in Kern County, CA

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Notice of availability and receipt of application.

SUMMARY:

The Lamont Public Utilities District (Applicant) 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 is considering the issuance of a 50-year permit to the Applicant that would authorize take of the endangered Tipton kangaroo rat (Dipodomys nitratoides nitratoides), the endangered San Joaquin kit fox (Vulpes macrotis mutica), and the western burrowing owl (Athene cunicularia), a species of special concern, incidental to otherwise lawful activities. Such take would occur during the proposed construction and operation of the Applicant's effluent disposal site expansion on a 160-acre site south of Lamont, Kern County, California. The proposed expansion includes the construction of two ponds, a series of leaching terraces, and access roads. The proposed project would affect suitable habitat for the San Joaquin kit fox and western burrowing owl, and permanently affect about 19 acres of occupied habitat of the Tipton kangaroo rat.

We request comments from the public on the permit application and Environmental Assessment, both of which are available for review. The permit application includes the proposed Habitat Conservation Plan (Plan) and an accompanying Implementing Agreement. The Plan describes the proposed action and the measures that the Applicant would undertake to minimize and mitigate take of the covered species.

DATES:

We must receive your written comments on or before March 28, 2005.

ADDRESSES:

Please address written comments to Lori Rinek, Chief, Conservation Planning and Recovery Division, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, California 95825. You also may send comments by facsimile to [phone].

FOR FURTHER INFORMATION CONTACT:

Jesse Wild, Fish and Wildlife Biologist, or Lori Rinek, Chief, Conservation Planning and Recovery Division at the Sacramento Fish and Wildlife Office at [phone].

SUPPLEMENTARY INFORMATION:

Availability of Documents

You may obtain copies of these documents for review by contacting Jesse Wild or Lori Rinek [see FOR FURTHER INFORMATION CONTACT]. Documents also will be available for public inspection, by appointment, during normal business hours at the Sacramento Fish and Wildlife Office [see ADDRESSES].

Background

Section 9 of the Act and Federal regulations prohibit the “take” of fish and wildlife species listed as endangered or threatened. Take of federally listed fish and wildlife is defined under the Act to include the following activities: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The Service may, under limited circumstances, issue permits to authorize incidental take (i.e., take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). Regulations governing incidental take permits for endangered species are found in 50 CFR 17.22.

In response to California Regional Water Quality Board requirements, the Applicant proposes to expand their current sewage effluent disposal facility to the southeast onto an adjacent 160-acre parcel located about 2.5 miles directly south of the town of Lamont (0.5 mile south of Bear Mountain Boulevard, State Route 223), immediately to the west of Wheeler Ridge Road (State Route 184) in Kern County, California.

On the northwest corner of the site, the Applicant proposes to construct two treatment ponds on approximately 21 acres. This pond construction would be located in unoccupied and previously disturbed areas as reported by completed survey and trapping records. Activities presently occurring in this area include composting and agriculture. The remaining 139 acres of the propetry would be graded for access roads, leveled, and planted in corn, alfalfa, or other forage crops for non-human consumption that can be irrigated and harvested periodically through standard cultivating and harvesting techniques.

A series of terraced benches may be constructed on the east side of the site, which is designated for agricultural use. Effluent would be spread aerially onto the benches, which would be about 600 feet wide, with a 4-foot gently-sloped drop between each bench. The terraced leaching benches would be used sequentially, allowing evaporation and infiltration of the effluent into the soil while water is being spread on other benches. The effluent would be spread on each pad as needed. Following the completion of infiltration and drying, each bench would be disked several times each year to maintain the highest levels of permeability and percolation. Winter wheat, corn, alfalfa, or another forage crop may be planted on the benches and harvested periodically.

The project site contained about 19 acres of habitat occupied by the Tipton kangaroo rat, according to survey trapping and mapping efforts concluded in 1995. The Service has concluded that implementation of the proposed project will likely result in take of Tipton kangaroo rats through the removal or repeated disturbance of habitat on the site.

Although no San Joaquin kit foxes were observed nor evidence found of their denning at the time of biological surveys, they may range through and periodically use the site for foraging and/or denning. The expansion and operation of the facilities is unlikely to result in direct mortality or injury of San Joaquin kit foxes, but may result in take in the form of harassment.

The western burrowing owl may occupy California ground squirrel (Spermophilus beecheyi) burrows adjacent to agricultural fields or along canal road ditches and berms, and may inhabit pipes and culverts on the project site. The owls may be displaced, killed, or disturbed by the construction of the project. Owls that occupy the site following the completion of construction may be affected by grading, blading, or disking.

The Applicant proposes to implement specific measures to minimize take and associated adverse project impacts to covered species. The Applicant also proposes to mitigate for take by purchase of 57 acres of compensation credits at the California Department of Fish and Game's Coles Levee Preserve in Kern County which supports all of the covered species. The compensation includes funds supporting a management endowment to ensure the permanent management and monitoring of sensitive species and habitats within the area protected by the Coles Levee Preserve.

The Service's Environmental Assessment considers the environmental consequences of the following alternatives. Alternative A consists of no permit issuance and no expansion of the Applicant's effluent disposal site at this time. Compared to the Preferred Alternative, Alternative A would result in less long-term conservation for the covered species within Kern County, and the Applicant would be in continued violation of California Regional Water Quality Board regulations. Alternative B (or the Preferred Alternative) consists of the issuance of the incidental take permit and implementation of the Plan and Implementing Agreement.

In addition, two additional alternatives were considered but eliminated from analysis. Alternative C discusses the option of constructing a sewage recycling plant with zero discharge. This type of plant is technologically feasible and would occupy much less land than one requiring an effluent spreading ground in accordance with State and Federal regulations. This alternative would result in less take of covered species habitat than the Preferred Alternative. However, it is extremely costly and, therefore, not an economically feasible alternative for the small town of Lamont. Alternative D discusses the purchase of a site for effluent disposal other than the one proposed in the Preferred Alternative. Surrounding sites have not been surveyed for covered species, so it has not been determined that there would be more or less take at any alternative site. Additionally, no sites are available for purchase within close proximity to the existing ponds that are not already in dairy or agriculture. Conserving prime agricultural land is also a concern, therefore, the use of the site in Alternative B is preferable since it has been degraded in various ways and would require modification prior to conventional agricultural activities.

Pursuant to an order issued on June 10, 2004, by the District Court for the District of Columbia in Spirit of the Sage Council v. Norton Civil Action No. 98-1873 (D.D.C.), the Service was enjoined from issuing new section 10(a)(1)(B) permits or related documents containing “No Surprises” assurances, as defined by the Service's “No Surprises” rule published at 63 FR 8859 (February 23, 1998), until such time as the Service adopts new permit revocation rules specifically applicable to section 10(a)(1)(B) permits in compliance with the public notice and comment requirements of the Administrative Procedures Act. In compliance with the court order, the Service published a final permit revocation rule (69 FR 71723) on December 10, 2004. This new permit revocation rule becomes effective on January 10, 2005. Until such time as the June 10, 2004, order has been rescinded by the court or the Service's authority to issue permits with “No Surprises” assurances has been otherwise reinstated, the Service will not approve any incidental take permits or related documents that contain “No Surprises” assurances.

This notice is provided pursuant to section 10(a) of the Act and the regulations of the National Environmental Policy Act (NEPA) of 1969 (40 CFR 1506.6). All comments that we receive, including names and addresses, will become part of the official administrative record and may be made available to the public. We will evaluate the application, associated documents, and comments submitted thereon to determine whether the application meets the requirements of NEPA regulations and section 10(a) of the Act. If we determine that those requirements are met, we will issue a permit to the Applicant for the incidental take of the covered species. We will make our final permit decision no sooner than 60 days from the date of this notice.

Dated: January 6, 2005.

Nicole Alt,

Acting Deputy Manager, California/Nevada Operations Office.