2010-17270. Endangered and Threatened Wildlife and Plants; Permit, San Bernardino County, CA

AGENCY:

U.S. Fish and Wildlife Service, Interior.

ACTION:

Notice of availability.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), have received an application from CJR General Partnership (applicant) for an incidental take permit under the Endangered Species Act of 1973, as amended (Act). We are considering issuing a permit that would authorize the applicant's take of the federally threatened desert tortoise (Gopherus agassizii) and State threatened Mohave ground squirrel (Xerospermophilus mohavensi s) incidental to otherwise lawful activities that would result in the permanent loss of 120 acres of habitat for the species near Oro Grande in San Bernardino County California. We invite comments from the public on the application, which includes the AgCon Habitat Conservation Plan (HCP) that fully describes the proposed project and measures the applicant will undertake to minimize and mitigate anticipated take of the species. We also invite comments on our preliminary determination that the HCP qualifies as a “low-effect” plan, which is eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. We explain the basis for this determination in our draft Environmental Action Statement and associated Low-Effect Screening Form, both of which are also available for review.

DATES:

To ensure consideration, please send your written comments by August 16, 2010.

ADDRESSES:

You may download a copy of the permit application, HCP, and related documents on the Internet at http://www.fws.gov/​ventura/​,, or you may request documents by U.S. mail or phone (see below). Please address written comments to Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003. You may alternatively send comments by facsimile to [phone].

FOR FURTHER INFORMATION CONTACT:

Jen Lechuga, HCP Coordinator, at the Ventura address above or by telephone at [phone], extension 224.

SUPPLEMENTARY INFORMATION:

Background

The desert tortoise, Mojave population, was listed as threatened on April 2, 1990 (55 FR 12178). Section 9 of the Act (16 U.S.C. 1531 et seq.) and our implementing Federal regulations in the Code of Federal Regulations (CFR) at 50 CFR 17 prohibit the “take” of fish or wildlife species listed as endangered or threatened. Take of listed fish or wildlife is defined under the Actas “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532). However, under limited circumstances, we 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 threatened and endangered species are at 50 CFR 17.32 and 17.22, respectively.

The Mohave ground squirrel is not a species listed under the Act. However, it is a State threatened species under the California Endangered Species Act. By including the Mohave ground squirrel in the HCP, take of this species would be authorized under the permit should this species become listed under the Act.

The Act's take prohibitions do not apply to federally listed plants on private lands unless such take would violate State law. In addition to meeting other criteria, the HCP's proposed actions must not jeopardize the existence of federally listed fish, wildlife, or plants.

The applicant proposes to expandits existing 120-acre Oro Grande sand and gravel mine pitto the north by 120 acres on parcel APN 0470-052-02 located north of Bryman Road and east of National Trails Highway, approximately 5 miles south of Helendale, San Bernardino County, California. The parcel contains Mojave creosotebush scrub and sandy loam soils. Desert tortoise surveys were conducted on the property and two individuals were found. Surveys for Mohave ground squirrels were not conducted. Their presence was assumed as the species has been recorded nearby and the property is within the range of and provides suitable habitat for the Mohave ground squirrel.

The proposed project would result in permanent impacts to 120 acres of habitat for the desert tortoise and Mohave ground squirrel. The applicant proposes to implement the following measures to minimize and mitigate for the loss of desert tortoise and Mohave ground squirrel habitat within the permit area: (1) Applicant will purchase 120 acres of desert tortoise and Mohave ground squirrel habitat in the Superior-Cronese Critical Habitat Unit and Desert Wildlife Management Area for the desert tortoise which will be managed in perpetuity by the California Department of Fish and Game or a third party for the conservation of the desert tortoise and Mohave ground squirrel; (2) a qualified biologist will oversee site preparation including vegetation and topsoil removal and fence construction, and provide worker training on the desert tortoise and Mohave ground squirrel and requirements of the HCP; (3) all desert tortoises captured during clearance surveys of the mine pit expansion site will be moved to adjacent creosotebush scrub habitat managed by the Bureau of Land Management (BLM); and (4) permanent desert tortoise exclusion fencing will be installed to demarcate the impact area from the adjacent areas, including the BLM-managed lands.

In the proposed HCP, the applicant considersfive alternatives to the taking of the desert tortoise and Mohave ground squirrel. The No Action alternative would maintain current conditions, the project would not be implemented, there would be no impacts to the desert tortoise or Mohave ground squirrel, and an incidental take permit application would not be submitted to the Service. The other alternatives include expanding mining operations at another existing mine, developing a new mine at a new site, reducing the size of the proposed mine expansion, and changing the duration or direction of the proposed mine expansion.

We are requesting comments on our preliminary determination that the applicant's proposal will have a minor or neglible effect on the species covered in the plan, and that the plan qualifies as a “low-effect” HCP as defined by our Habitat Conservation Planning Handbook (November 1996). We base our determination that the HCP qualifies as a low-effect HCP on the following three criteria: (1) Implementation of the applicant's project description in the HCP would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the HCP would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the HCP, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to the environmental values or resources that would be considered significant. As more fully explained in our draft Environmental Action Statement and associated Low-Effect Screening Form, the applicant's proposed HCP qualifies as a “low-effect” HCP for the following reasons:

(1) Approval of the HCP would result in minor or negligible effects on the desert tortoise, Mohave ground squirrel, and their habitats. We do not anticipate significant direct, indirect, or cumulative effects to the desert tortoise resulting from the proposed project;

(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 would not result in significant adverse effects on public health or safety;

(4) The project does not require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or the Fish and Wildlife Coordination Act, nor does it threaten to violate a Federal, State, local, or tribal law or requirement imposed for the protection of the environment; and

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

We, therefore, have made the preliminary determination that the approval of the HCP and incidental take permit application qualifies for a categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq.), as provided by the Department of the Interior Manual (516 DM 2 Appendix 2 and 516 DM 8). Based on our review of public comments that we receive in response to this notice, we may revise this preliminary determination.

Next Steps

We will evaluate the HCP and comments we receive to determine whether the permit application meets the requirements of section 10(a)(1)(B) of the Act (16 U.S.C. 1531 et seq.) and implementing regulations (50 CFR 17.32). If we determine that the application meets these requirements, we will issue the permit for incidental take of the desert tortoise and Mohave ground squirrel. We will also evaluate whether issuance of a section 10(a)(1)(B) permit would comply with section 7 of the Act by conducting an intra-Service section 7 consultation. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to issue a permit. If the requirements are met, we will issue the permit to the applicant.

Public Comments

If you wish to comment on the permit application, HCP, and associated documents, you may submit comments by any one of the methods in ADDRESSES.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Authority

We provide this notice under section 10 of the Act (U.S.C. 1531 et seq.) and NEPA regulations (40 CFR 1506.6).

Dated: July 9, 2010.

Diane K. Noda,

Field Supervisor, Ventura Fish and Wildlife Office, Ventura, California.