[Federal Register Volume 84, Number 118 (Wednesday, June 19, 2019)]
[Notices]
[Pages 28578-28580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12953]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-R8-ES-2019-N053; FXES11140800000-190-FF08ECAR00]


Habitat Conservation Plan for the Coastal California Gnatcatcher; 
Categorical Exclusion for 93-129 Ltd, Orange County, California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comments.

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SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from 93-129 Ltd for a 10-year incidental take permit for 
the coastal California gnatcatcher pursuant to the Endangered Species 
Act. We are requesting comments on the permit application and on our 
preliminary determination that the applicant's accompanying proposed 
habitat conservation plan qualifies as low effect, eligible for a 
categorical exclusion under the National Environmental Policy Act. The 
basis for this determination is discussed in our environmental action 
statement and associated low-effect screening form, which are also 
available for public review.

DATES: Written comments should be received on or before July 19, 2019.

ADDRESSES: Submitting Comments: You may submit comments by one of the 
following methods. Please include ``93-129 Ltd'' at the beginning of 
your comments.
     U.S. Mail: Field Supervisor, Carlsbad Fish and Wildlife 
Office, U.S.

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Fish and Wildlife Service, 2177 Salk Avenue, Suite 250, Carlsbad, CA 
92008.
     Fax: Field Supervisor, 760-431-9624.
     Email: [email protected].
    Obtaining Documents: You may obtain copies of the documents by the 
following methods:
     Internet: https://www.fws.gov/carlsbad/HCPs/HCP_Docs.html.
     Telephone: 760-431-9440.
     U.S. Mail: Carlsbad Fish and Wildlife Office (address 
above).
     In-Person: You may examine the documents by appointment 
during regular business hours at the Carlsbad Fish and Wildlife Office 
(address above). Please call to make an appointment (see FOR FURTHER 
INFORMATION CONTACT).

FOR FURTHER INFORMATION CONTACT: Ms. Karen Goebel, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office, 760-431-9440. If you use 
a telecommunications device for the deaf (TDD), please call the Federal 
Relay Service (FRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an application from 93-129 Ltd (applicant) for 
a 10-year incidental take permit for one covered species pursuant to 
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended 
(ESA; 16 U.S.C. 1531 et seq.). The application addresses the 
anticipated ``take'' of the threatened coastal California gnatcatcher 
(Polioptila californica californica; gnatcatcher). The applicant 
proposes to grade, subdivide, and construct infrastructure for four 
estate custom home parcels on the approximately 50-acre parcel 
(Tentative Parcel Map 93-129) in Laguna Niguel, California. The 
proposed project will impact an estimated 4.3 acres of coastal sage 
scrub and up to two pairs of gnatcatchers. A conservation program to 
avoid, minimize, and mitigate for project activities would be 
implemented as described in the applicant's proposed habitat 
conservation plan (HCP). On June 25, 2007, the Service issued a 10-year 
incidental take permit for the subject project. Implementation of the 
project was delayed and the permit expired on June 25, 2017.
    We are requesting comments on the permit application and on our 
preliminary determination that the proposed HCP qualifies as a low-
effect HCP, eligible for a categorical exclusion under the National 
Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321 et 
seq.). The basis for this determination is discussed in our 
environmental action statement and associated low-effect screening 
form, which are also available for public review.

Background

    Section 9 of the ESA and its implementing Federal regulations 
prohibit the take of animal species listed as endangered or threatened. 
``Take'' is defined under the ESA as to ``harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect [listed animal species], 
or to attempt to engage in such conduct'' (16 U.S.C. 1538). ``Harm'' 
includes significant habitat modification or degradation that actually 
kills or injures listed wildlife by significantly impairing essential 
behavioral patterns, such as breeding, feeding, or sheltering (50 CFR 
17.3). However, under section 10(a) of the ESA, the Service may issue 
permits to authorize incidental take of listed species. ``Incidental 
taking'' is defined by the ESA implementing regulations as taking that 
is incidental to, and not the purpose of, carrying out an otherwise 
lawful activity (50 CFR 17.3). Regulations governing incidental take 
permits for endangered and threatened species, respectively, are found 
in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Applicant's Proposed Project

    The project is located on a 50-acre property in the City of Laguna 
Niguel in Orange County, California (Tentative Parcel Map 93-129). The 
applicant requests a 10-year permit under section 10(a)(1)(B) of the 
ESA. If we approve the permit, the applicant anticipates taking 
gnatcatcher as a result of permanent impacts to 4.3 acres of coastal 
sage scrub that the species uses for breeding, feeding, and sheltering. 
The take would be incidental to the applicant's activities associated 
with the grading, subdivision, and construction of four estate custom 
home parcels.
    The applicant proposes to mitigate permanent impacts to 4.3 acres 
of occupied gnatcatcher habitat through the creation and restoration of 
10.61 acres of coastal sage scrub and conservation of 12.8 acres of 
coastal sage scrub (including the created and restored habitat). The 
conserved habitat will be managed in perpetuity.
    The applicant's proposed HCP also contains measures to minimize the 
effects of construction activities on the gnatcatcher, including the 
following: Oversight of project activities by a biological monitor; 
fencing the project limits; implementing an erosion control plan to 
avoid and minimize degradation of adjacent native habitat; removing 
invasive plant species from the property; minimizing the spillage of 
project lighting into the conserved area; providing educational 
brochures to residents on the responsibilities associated with living 
near a conserved area; removing previously used dirt access roads to 
reduce illegal trespassing into natural areas; and monitoring and 
reporting to the Service upon project completion.

Proposed Action and Alternatives

    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed HCP, which includes measures 
to avoid, minimize, and mitigate impacts to the gnatcatcher. If we 
approve the permit, take of gnatcatcher would be authorized for the 
applicant's activities associated with the implementation of the 93-129 
project. In the proposed HCP, the applicant considers two alternatives. 
Under the No Action Alternative, no permit would be issued and 
incidental take of the gnatcatcher resulting from habitat loss would 
occur, and no long-term protection and management would be afforded to 
the species. The No Action Alternative would not meet the primary goal 
of the proposed Project, which is to construct residential homes. Under 
the Parcel by Parcel Alternative, each individual parcel owner would 
conduct grading and slope stabilization activities. This alternative 
would necessitate the construction of an additional road immediately 
adjacent to the coastal sage scrub habitat conservation area on the 
north side of the property's ridgeline and would significantly increase 
the impacts to coastal sage scrub habitat.

Our Preliminary Determination

    The Service has made a preliminary determination that approval of 
the HCP and issuance of an incidental take permit qualify for 
categorical exclusion under NEPA (42 U.S.C. 4321 et seq.), as provided 
by the Department of the Interior implementing regulations in part 46 
of title 43 of the Code of Federal Regulations (43 CFR 46.205, 46.210, 
and 46.215), and that the HCP qualifies as a low-effect plan as defined 
by the Habitat Conservation Planning Handbook (December 2016).
    We base our determination that a HCP qualifies as a low-effect plan 
on the following three criteria:
    (1) Implementation of 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

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    (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 
environmental values or resources that would be considered significant.
    Based upon this preliminary determination, we do not intend to 
prepare further NEPA documentation. We will consider public comments in 
making the final determination on whether to prepare such additional 
documentation.

Next Steps

    We will evaluate the proposed HCP and comments we receive to 
determine whether the permit application meets the requirements and 
issuance criteria under section 10(a) of the ESA (16 U.S.C. 1531 et 
seq.). We will also evaluate whether issuance of a section 10(a)(1)(B) 
incidental take permit would comply with section 7 of the ESA by 
conducting an intra-Service 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 and issuance criteria under section 10(a) are met, we will 
issue the permit to the applicant for incidental take of the 
gnatcatcher.

Public Availability of Comments

    Before including your address, phone number, email 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 may 
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 ESA (16 U.S.C. 1531 
et seq.) and NEPA regulations (40 CFR 1506.6).

Scott Sobiech,
Acting Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
California.
[FR Doc. 2019-12953 Filed 6-18-19; 8:45 am]
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