[Federal Register Volume 69, Number 108 (Friday, June 4, 2004)]
[Notices]
[Pages 31632-31635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11875]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Availability of the Final Environmental Impact Statement/
Environmental Impact Report for an Incidental Take Permit for the 
Multiple Habitat Conservation Program, Carlsbad, CA.

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.

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SUMMARY: On December 9, 1999, the City of Carlsbad, California, applied 
to the U.S. 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 requesting public comment on the 
Carlsbad Subarea Plan/Habitat Management Plan (HMP), draft Urgency 
Ordinance, and Implementing Agreement. We are also seeking public 
comments on the final Environmental Impact Statement/Environmental 
Impact Report (EIS/EIR) for the Multiple Habitat Conservation Program 
for the Cities of Carlsbad, Encinitas, Escondido, Oceanside, San 
Marcos, Solana Beach, and Vista (MHCP), and are making available for 
public review the responses to comments on the draft MHCP EIS/EIR. The 
proposed permit on the HMP would authorize the incidental take of 19 
animal species, including 12 unlisted species should any of them become 
listed, under the Act, during the term of the proposed 50-year permit. 
The permit is needed to authorize take of listed animal species 
(including harm, injury and harassment) during public and private 
development, and during monitoring and management of preserve areas in 
the approximately 6,786-acre Plan Area in Carlsbad, California. The 
permit would also include two listed and four unlisted plant species, 
the take of which is not prohibited under Federal law, in recognition 
of the conservation benefits provided to these species under the larger 
seven city MHCP and the Carlsbad HMP.

DATES: We must receive your written comments on or before July 6, 2004.

ADDRESSES: Please send comments to Mr. Jim Bartel, Field Supervisor, 
U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley

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Road, Carlsbad, California 92009; facsimile (760) 431-9618.

FOR FURTHER INFORMATION CONTACT: Ms. Therese O'Rourke, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES), 
telephone number (760) 431-9440.

SUPPLEMENTARY INFORMATION: 

Public Review Process

    On June 28, 2000, a notice of receipt of an incidental take permit 
application and availability of an Environmental Assessment for the HMP 
was published in the Federal Register for a 30-day public comment 
period (65 FR 39919). We received a total of 32 comment letters on the 
draft Environmental Assessment. In response to comments received during 
the 30-day public review period, the Service chose to complete its 
obligations under the National Environmental Policy Act through the 
EIS/EIR prepared for the MHCP Plan, in which the City of Carlsbad's HMP 
is fully analyzed. Notice of availability of the draft EIS/EIR and 
draft MHCP Plan was published in the Federal Register on December 28, 
2001 for a 120-day public comment period (66 FR 67292). The draft EIS/
EIR analyzed the potential environmental impacts that may result from 
the Federal action of authorizing incidental take anticipated to occur 
with implementation of the MHCP, and identified various alternatives. 
We received a total of 41 comment letters on the draft EIS/EIR. A 
response to each comment has been included in volume 2 of the final 
EIS/EIR.
    The Carlsbad HMP has been modified by addendum, since the draft 
EIS/EIR was published, as a result of responding to comments from the 
California Coastal Commission (CCC) in order to receive a Federal 
consistency determination from the CCC. All of the changes made to the 
HMP, as a result of the CCC (included in the addendum), are limited to 
the coastal zone of the City, and do not substantially change the 
effects analysis and proposed action in the final EIS/EIR. Thus, no 
additional NEPA analysis was conducted of these changes.
    Due to the amount of time that has passed since the public comment 
period on the original application for an incidental take permit for 
the Carlsbad HMP, we are publishing this notice to inform the public of 
the proposed action and to make available for review the final MHCP 
EIS/EIR, which includes responses to public comments received on the 
draft EIS/EIR.

Availability of Documents

    Copies of the three volume subregional MHCP Plan, Carlsbad HMP for 
the proposed permit, Implementing Agreement, draft Urgency Ordinance, 
and final EIS/EIR are available for review at the following locations 
in California:
    1. City of Carlsbad--1635 Faraday Avenue, Carlsbad, CA 92008.
    2. Carlsbad City Hall--1200 Carlsbad Village Drive, Carlsbad, CA 
92008.
    3. U.S. Fish and Wildlife Service--6010 Hidden Valley Road, 
Carlsbad, CA 92009.
    4. Carlsbad City Library (South)--1775 Dove Lane, Carlsbad, CA 
92009.
    5. Ceorgina Cole Library (North)--1250 Carlsbad Village Drive, 
Carlsbad, CA 92009.
    The responses to comments on the draft Environmental Assessment for 
the Carlsbad HMP are available upon request (see FOR FURTHER 
INFORMATION CONTACT).

Background

    The City of Carlsbad seeks an incidental take permit and assurances 
for 19 animal species (5 endangered, 2 threatened, and 12 unlisted), 
and assurances for 6 plant species (1 endangered, 1 threatened, and 4 
unlisted). The animal species include 16 bird species (5 endangered, 2 
threatened, and 9 unlisted); 2 unlisted insect species; and 1 unlisted 
reptile species. Collectively the 25 listed and unlisted species are 
referred to as Covered Species by the HMP.
    An additional six plant species (one endangered, one threatened, 
and four unlisted) are included in the HMP, but coverage would not be 
granted until the respective other City which has the critical 
population of the plant receives a permit under section 10(a)1(B) of 
the Act for their subarea plan/HMP. Please note that two of these plant 
species (one threatened and one unlisted) also need a commitment of 
funding for management and monitoring before coverage would be granted. 
Lastly, 10 plants (3 endangered, 2 threatened, and 5 unlisted) and 2 
endangered crustaceans are also included in the HMP, but coverage would 
not be granted until a funding source (such as regional funding) is 
available to the City of Carlsbad to fund management and monitoring 
necessary to adequately protect these species. Please note that even if 
the City of Carlsbad acquires the necessary funding to receive coverage 
for the 10 plant species above, one of the unlisted plants would remain 
not covered until another MHCP City receives a permit under section 
10(a)1(B) of the Act. Lastly, six vernal pool species (two endangered 
plants, two endangered crustaceans, one threatened plant, and one 
unlisted plant) could not receive coverage until the City of Carlsbad 
also receives legal control over the protection, management, and 
monitoring of the vernal pools located adjacent to the Poinsettia Train 
Station.
    The species for which coverage is proposed under the Carlsbad HMP 
are presently included as exhibit A to the draft Implementing 
Agreement. It is intended that exhibits A, B, and C to the Implementing 
Agreement will be added to the Carlsbad HMP, if approved by the 
Carlsbad City Council. This, if approved, will be reflected in the 
final documents submitted in application for the section 10(a)(1)(B) 
permit.
    A permit is needed because section 9 of the Act and Federal 
regulations prohibit the ``take'' of animal species listed as 
endangered or threatened. Take of listed animal species, as defined 
under the Act, includes actions that kill, harm, or harass such 
species. Harm includes significant habitat modification or degradation 
that actually kills or injures listed animals by significantly 
impairing essential behavioral patterns, including breeding, feeding, 
and sheltering [50 CFR 17.3(c)]. Under limited circumstances, the 
Service may issue permits to authorize incidental take; i.e., take that 
is incidental to, and not the purpose of, otherwise lawful activity.
    The take prohibitions of the Act do not apply to listed plants, 
although section 9 of the Act does prohibit certain acts, including the 
removal or destruction of listed plants in violation of State law. 
Although take of listed plants is not prohibited under the Act, we 
propose to name one endangered and one threatened plant species on the 
permit in recognition of the conservation measures and benefits that 
would be provided to them under the proposed HMP.
    Assurances to the City of Carlsbad in case of changed or unforeseen 
circumstances would be provided as stated in the Service's regulations 
at 50 CFR 17.22(b)(5), and 17.32(b)(5). Regulations governing 
incidental take permits for threatened and endangered species are found 
in 50 CFR 17.32 and 17.22.

Proposed Action

    The Service's proposed action is to issue an incidental take permit 
to the City of Carlsbad. The permit application from the City includes 
a Subarea Plan/HMP that qualifies as both a Habitat Conservation Plan 
pursuant to Federal law and a Natural Community Conservation Plan 
pursuant to State law. On December 10, 1993, we issued a final special 
rule for the coastal

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California gnatcatcher (Polioptila californica californica) pursuant to 
section 4(d) of the Act (58 FR 65088). This rule allows incidental take 
of the gnatcatcher if such take results from activities conducted under 
a plan prepared pursuant to the State of California's Natural Community 
Conservation Planning Act of 1991, its associated Process Guidelines, 
and the Southern California Coastal Sage Scrub Conservation Guidelines. 
Consistent with the Conservation Guidelines, while planning for natural 
communities is underway, the special rule allows interim loss of no 
more than five percent of the coastal sage scrub habitat in specified 
areas (subregions).
    The MHCP is one of several large, multiple-jurisdictional habitat 
planning efforts in San Diego County, each of which constitutes a 
``subregional'' plan under the State of California's Natural Community 
Conservation Planning Act of 1991. The MHCP is intended to protect 
viable populations of native plant and animal species and their 
habitats in perpetuity through the creation of a preserve system, while 
accommodating continued economic development, in northwestern San Diego 
County. The MHCP encompasses 175 square miles comprised of the 
following seven incorporated cities: Carlsbad, Encinitas, Escondido, 
Oceanside, San Marcos, Solana Beach, and Vista. The MHCP is designed to 
be implemented through individual Subarea Plans prepared by 
participating cities, such as the City of Carlsbad.
    The MHCP would create a preserve system that protects, manages, and 
monitors in perpetuity 67 percent of coastal sage scrub, 70 percent of 
chaparral, 53 percent of coastal sage/chaparral mix, and 100 percent of 
riparian and estuarine habitats in the study area. (Please note that 
the December 28, 2001 Federal Register notice requesting public 
comments on the draft EIS/EIR inaccurately stated the level of 
preservation for coastal sage/chaparral mix to be 80 percent when the 
stated amount of this habitat type to be preserved according to the 
draft EIS/EIR was 50 percent.) A major component of the preserve is the 
conservation of 400 to 500 acres of contiguous coastal sage scrub 
centered around the cities of Carlsbad, Encinitas, and the extreme 
southwest portion of San Marcos, which supports 16 to 23 pairs of the 
federally threatened coastal California gnatcatcher. In addition, 338 
acres of coastal sage scrub would be restored in key locations within 
the preserve area. Overall, 20,428 acres (68 percent) of the natural 
habitats found in the total MHCP study area would be conserved.
    Activities proposed for coverage in the City of Carlsbad Subarea 
Plan/HMP, which require discretionary action by a permittee, subject to 
consistency with the MHCP and HMP policies, include: public and private 
development projects, including a City Municipal golf course; various 
infrastructure projects such as roads, recreational trails and 
facilities; and management of preserve areas.
    As described in the subregional MHCP, Subarea Plan/HMP, and EIS/
EIR, the City of Carlsbad proposes to create a preserve system to 
mitigate the impact of public and private development over a 50-year 
period by protecting 6,786 acres (6,478 acres within the City of 
Carlsbad and 308 outside the City of Carlsbad) of habitat for the 
Covered Species. The majority of the preserve (5,928 acres) consists of 
existing and proposed ``hard-lined'' areas designated for 100 percent 
conservation. Up to 550 acres would be conserved on lands designated as 
``standards'' areas which have established assured levels of 
conservation through applying biological criteria (rather than 
delineating the project footprint by a hard-line). An additional 308 
acres would be conserved outside of the City of Carlsbad's Subarea for 
impacts that would occur within the City's Subarea. Total conservation 
within the MHCP Subregional Preserve as a result of the City of 
Carlsbad's Subarea Plan/HMP is estimated to be 6,786 acres. The 
preserve within the City's Subarea would contain, at a minimum, the 
following habitats: Coastal sage scrub (2,139 acres), chaparral (676 
acres), southern maritime chaparral (342 acres), grassland (707 acres), 
oak woodland (24 acres), eucalyptus woodland (99 acres), marsh (1,252 
acres), riparian (494 acres), and other non-habitat lands (745 acres). 
In addition, the subregional MHCP and Subarea Plan/HMP include measures 
to avoid and minimize incidental take of the Covered Species, 
emphasizing project design modifications to protect both habitats and 
species' individuals. A monitoring and reporting plan would gauge the 
Plan's success based on achievement of biological species objectives 
and reserve design criteria, and would ensure that conservation keeps 
pace with open space conversion. The subregional MHCP and Subarea Plan/
HMP also include adaptive management which allows for changes in the 
conservation program if the biological species objectives are not met, 
or new information becomes available to improve the efficacy of the 
MHCP's and HMP's conservation strategy.
    If the Service approves the City of Carlsbad's Subarea Plan/HMP, 
and issues an incidental take permit to the City of Carlsbad, the five 
percent limit on interim loss of coastal sage scrub, imposed as part of 
the Natural Community Conservation Planning Program and the special 
rule for the gnatcatcher, would be replaced by the conditions of the 
permit and the Implementing Agreement. Carlsbad would then exercise its 
land-use review and approval powers in accordance with the permit, 
Subarea Plan/HMP, and Implementing Agreement to implement the City of 
Carlsbad's Subarea Plan/HMP and assemble its preserve. The City would 
amend its General Plan to include the Subarea Plan/HMP as part of the 
Open Space and Conservation Element of the General Plan.
    Additionally, the City of Carlsbad would use its local regulatory 
authority to create or modify ordinances to implement the City's 
Subarea Plan/HMP. Initially an urgency ordinance would be used to 
implement the plan, but ultimately a new Habitat Loss and Incidental 
Take (HLIT) ordinance would be created to implement the conservation 
and development standards contained in the Subarea Plan/HMP for those 
development projects outside of Covered Projects (i.e., specific 
projects identified in the Subarea Plan/HMP that could be covered for 
incidental take pursuant to the proposed incidental take permit). The 
HLIT ordinance would also provide local regulations for narrow endemic 
species and wetlands. The City would also amend its existing Grading 
ordinance to provide regulations for clearing and grubbing of sensitive 
habitats and require compliance with the City's Subarea Plan/HMP prior 
to grading of sensitive habitat. Special standards would be applied to 
those areas of sensitive habitat within the designated Coastal Zone, 
pursuant to Carlsbad's certified Local Coastal Program.

Alternatives

    The Draft EIS/EIR considered three alternatives in addition to the 
preferred alternative/proposed project described above: (1) A reduced 
preservation alternative; (2) an increased preservation alternative; 
and (3) a no project alternative.
    Under the reduced preservation alternative, the preserve system 
would be similar to the proposed project; however, the preserve system 
would not include: Preservation of the 400 to 500 acres of contiguous 
coastal sage scrub in the coastal California gnatcatcher core area and 
the restoration of 338 acres of coastal sage scrub habitat throughout

[[Page 31635]]

the MHCP planning area. Overall, 19,928 acres (67 percent) of the 
habitat in the total MHCP study area would be conserved under this 
alternative.
    Under the increased preservation alternative, all large contiguous 
areas of habitat, all areas supporting major and critical species 
populations or habitat areas, and all important functional linkages and 
movement corridors between them would be conserved. Approximately 83 
percent of coastal sage scrub, 93 percent of chaparral, 95 percent of 
coastal sage/chaparral mix, and 100 percent of riparian and estuarine 
habitats would be conserved in the total MHCP study area. Overall, 
24,565 acres (82 percent) of the habitat in the study area would be 
conserved under this alternative.
    Under the no project alternative, only listed species and habitat 
occupied by such species would receive protection. It was estimated 
that conservation levels would include 19 percent of coastal sage 
scrub, 31 percent of chaparral, and 18 percent of coastal sage/
chaparral mix within the MHCP study area. Overall, 8,989 acres (30 
percent) of natural habitats in the study area would be conserved under 
this alternative.

Purpose of Final EIS/EIR

    The analysis provided in the final EIS/EIR is intended to 
accomplish the following: Inform the public of the Service's proposed 
action; address public comments received on the draft MHCP EIS/EIR; 
disclose the direct, indirect, and cumulative environmental effects of 
our proposed action; and indicate any irreversible commitment of 
resources that would result from implementation of the proposed action. 
This notice is provided pursuant to section 10 of the Act and National 
Environmental Policy Act (1972) regulations (40 CFR 1506.6).

Decision

    We will consider all comments received during the comment period. 
We also will evaluate the permit application and associated documents 
to determine whether the application meets the requirements of section 
10(a) of the Act. If we determine that the requirements are met, we 
will issue an incidental take permit to the City of Carlsbad. 
Subsequent to this decision, we will publish a separate notice of the 
availability of our Record of Decision and other decision documents.

D. Kenneth McDermond,
Deputy Manager, Region 1, California/Nevada Operations Office, 
Sacramento, California.
[FR Doc. 04-11875 Filed 6-3-04; 8:45 am]
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