[Federal Register Volume 88, Number 102 (Friday, May 26, 2023)]
[Notices]
[Pages 34176-34178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-11226]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[Docket No. FWS-R8-ES-2023-0043; FXES11140800000-234-FF08ECAR00]


Endangered and Threatened Wildlife and Plants; Proposed Low-
Effect Habitat Conservation Plan for the Sweetwater Authority Habitat 
Management Program and Habitat Recovery Project, County of San Diego, 
CA

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, announce receipt of an 
application for an incidental take permit under the Endangered Species 
Act and a draft habitat conservation plan from the Sweetwater 
Authority. We request public comment on the application, which includes 
the applicant's proposed habitat conservation plan (HCP), and on the 
Service's preliminary determination that the proposed permitting action 
may be eligible for a categorical exclusion pursuant to the Council on 
Environmental Quality's National Environmental Policy Act (NEPA) 
regulations, the Department of the Interior's (DOI) NEPA regulations, 
and the DOI Departmental Manual. To make this preliminary 
determination, we prepared a draft environmental action statement and 
low-effect screening form, which is also available for public review. 
We invite comment from the public and local, State, Tribal, and Federal 
agencies.

DATES: To ensure consideration, please send your written comments by 
June 26, 2023.

ADDRESSES: Obtaining Documents: You may obtain copies of the documents 
this notice announces, along with public comments received, online in 
Docket No. FWS-R8-ES-2023-0043 at https://www.regulations.gov.
    Submitting Comments: You may submit comments by one of the 
following methods:
     Online: https://www.regulations.gov. Search for and submit 
comments on Docket No. FWS-R8-ES-2023-0043.
     Email: [email protected].

FOR FURTHER INFORMATION CONTACT: Mr. Jonathan Snyder, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office, 760-431-9440 
(telephone). Individuals in the United States who are deaf, deafblind, 
hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION: We, the U.S. Fish and Wildlife Service 
(Service), have received an application from the Sweetwater Authority 
(applicant) for a 5-year incidental take permit for five covered 
species pursuant to section 10(a)(1)(B) of the Endangered Species Act 
of 1973, as amended (Act; 16 U.S.C. 1531 et seq.). The applicant is 
seeking a permit to incidentally take four animal species and seeking 
assurance for one plant species (all are federally listed species) 
during the term of the proposed 5-year permit. The permit is needed to 
authorize take of listed animal species (including harm, death, and 
injury) in the course of activities associated with the implementation 
of the Sweetwater Reservoir Habitat Management Program (HMP), removal 
of the requirement to hold reservoir water elevation at or below 230 
feet (ft), and implementation of the Sweetwater Reservoir Wetlands 
Habitat Recovery Project (HRP) within the HMP area in San Diego County, 
California. A conservation program to avoid, minimize, and mitigate 
anticipated impacts from project activities would be implemented as 
described in the habitat conservation plan (HCP) prepared by the 
applicant.
    We are requesting comments on the permit application, which 
includes the applicant's habitat conservation plan (HCP), and on the 
Service's preliminary determination that this proposed incidental take 
permit qualifies as ``low effect'' and may qualify for a categorical 
exclusion pursuant to the Council on Environmental Quality's National 
Environmental Policy Act (NEPA) regulations (40 CFR 1501.4), the 
Department of the Interior's (DOI) NEPA regulations (43 CFR 46), and 
the DOI's Departmental Manual (516 DM 8.5(C)(2)). To make this 
preliminary determination, we prepared a draft environmental action 
statement and low-effect screening form, which is also available for 
public review.

Background

    Section 9 of the Act and its implementing Federal regulations 
prohibit the take of animal species listed as endangered or threatened. 
``Take'' is defined under the Act 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). However,

[[Page 34177]]

under section 10(a) of the Act, the Service may issue permits to 
authorize incidental take of listed animal species. ``Incidental take'' 
is defined by the Act's implementing regulations as take that is 
incidental to, and not the purpose of, carrying out an otherwise lawful 
activity. 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. The definition of take 
under the Act does not apply to plant species; however, plant species 
identified in an HCP are included on the permit as covered species in 
recognition of the conservation measures provided for them under the 
HCP, and these plants receive ``no surprises'' regulatory assurances 
under the permit.
    The HMP area is in southern San Diego County, south of the 
community of Spring Valley, along the Sweetwater River. The Sweetwater 
Reservoir is a managed surface water storage facility in the Sweetwater 
River Watershed that receives direct local runoff from the watershed's 
middle basin, water transfers from Loveland Reservoir (which captures 
water runoff from the watershed's upper basin), and imported water, 
when available, through the San Diego County Water Authority aqueduct. 
The HMP area supports coastal sage scrub, mulefat scrub, southern 
willow forest, and nonnative grassland vegetation communities, which 
include potential habitat for the covered species: the federally listed 
endangered least Bell's vireo (Vireo bellii pusillus) and southwestern 
willow flycatcher (Empidonax traillii extimus), and the federally 
listed threatened coastal California gnatcatcher (Polioptila 
californica californica), yellow-billed cuckoo (Coccyzus americanus), 
and Otay tarplant (Deinadra conjugens). More details on the specific 
parcels and their locations are available in the permit application 
(see ADDRESSES).
    The applicant is seeking an incidental take permit for 
implementation of the HMP, removal of the 230-ft-elevation imported 
water restrictions, and implementation of the 66.9-acre (ac) HRP within 
the 250-ac HMP area. The HMP area was originally set aside for 
conservation in 1994 to preserve and manage least Bell's vireo and 
southwestern willow flycatcher and their habitat, while providing the 
applicant the ability to manage the Sweetwater Reservoir for drinking 
water purposes. In 2005, an irrevocable dedication of land for wildlife 
preservation was created on 52.5 ac of riparian habitat within the HMP 
area potentially suitable for least Bell's vireo, and associated 
mitigation credits were established for applicant project impacts to 
least Bell's vireo and riparian habitat. The HRP is a grant-funded 
project and will establish 66.9 ac of additional riparian and wetland 
habitat within the managed portion of Sweetwater Reservoir, using a 
combination of passive and active techniques. The applicant also 
proposes to remove the 230-ft restriction and allow the water elevation 
to reach the high point of the dam (239 ft) on an infrequent basis, to 
increase water storage during high-rainfall years. Raising the water 
elevation threshold may result in infrequent flooding and temporary 
impacts to riparian habitat, with reproductive impacts to least Bell's 
vireo, and also potentially to southwestern willow flycatcher and 
yellow-billed cuckoo should they be observed on site in the future. The 
HCP requires an update to the HMP to address changes in reservoir 
operations and adaptive management of reservoir levels; the HMP update 
must be completed and approved by the Service prior to allowing 
imported water above the 230-ft elevation. The updated HMP will allow 
for the establishment of additional mitigation credits based on newly 
established and restored riparian habitat placed under in-perpetuity 
conservation.
    The HMP area provides regionally important habitat for least Bell's 
vireo as well as potential habitat for southwestern willow flycatcher 
and yellow-billed cuckoo. We anticipate minor periodic impacts to least 
Bell's vireo, and potentially to southwestern willow flycatcher and 
yellow-billed cuckoos, during implementation of the HRP and HMP, and 
infrequent, temporary flooding impacts associated with the increase in 
the reservoir elevation in periods of high rainfall. Proposed 
maintenance activities within the HMP also have the potential to result 
in minor periodic impacts to the coastal California gnatcatcher in 
upland coastal sage scrub habitat. Critical habitat for least Bell's 
vireo, southwestern willow flycatcher, coastal California gnatcatcher, 
and Otay tarplant occur within the 250-ac HMP area proposed to be 
conserved in perpetuity.

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 covered species. The 
applicant proposes to preserve the entire 250-ac HMP in perpetuity 
through an irrevocable dedication or similar instrument. As project-
specific mitigation, the applicant will debit 37.5 ac from established 
riparian habitat mitigation credits within the HMP. Funding for habitat 
management within the HMP will come from the applicant's general funds, 
an endowment for in-perpetuity funding, or other mechanism(s) agreed 
upon by the Service and the California Department of Fish and Wildlife.
    Three alternatives to the taking of the listed species under the 
proposed action are considered in the proposed HCP. Under the no-action 
alternative, no authorized incidental take of covered species would 
occur, and no additional habitat restoration or management would be 
conducted in the HMP to expand habitat for least Bell's vireo, 
southwestern willow flycatcher, or yellow-billed cuckoo. Under the HRP 
with channel modifications alternative, extensive grading and channel 
modifications within the floodplain would improve natural hydrology 
with substantial impacts to existing riparian habitat but ultimately 
more sustainable hydrological function. This alternative would result 
in an increase in the temporal loss of riparian habitat and breeding 
territories relative to the proposed action and require additional 
regulatory permitting. Under the alternative for retaining the 230-ft 
imported water restriction, the water storage capacity of the reservoir 
would not be increased to meet regional drinking water demands. While 
this alternative would reduce potential infrequent temporary impacts to 
least Bell's vireo, southwestern willow flycatcher, and yellow-billed 
cuckoo and their habitat, habitat flooding with the potential to impact 
covered riparian birds and their habitat may still occur within the HMP 
in high-rainfall years, and the applicant would not be eligible for the 
grant that is proposed to fund the HRP. The proposed project achieves 
the applicant's objectives and maximizes riparian vegetation and least 
Bell's vireo habitat, while minimizing potential impacts to covered 
species.

Our Preliminary Determination

    The Service has made a preliminary determination that the 
applicant's proposed project would individually and cumulatively have a 
minor, nonsignificant effect on the covered species and the human 
environment. Therefore, we have preliminarily determined that the 
proposed Endangered Species Act section 10(a)(1)(B) permit would be a 
``low-effect'' incidental take permit that individually or cumulatively 
would have a minor effect on the species and

[[Page 34178]]

may qualify for application of a categorical exclusion pursuant to the 
Council on Environmental Quality's NEPA regulations, DOI's NEPA 
regulations, and the DOI Departmental Manual. A ``low-effect'' 
incidental take permit is one that would result in (1) minor or 
negligible effects on species covered in the HCP; (2) nonsignificant 
effects on the human environment; and (3) impacts that, when added 
together with the impacts of other past, present, and reasonably 
foreseeable actions, would not result in significant cumulative effects 
to the human environment.

Public Comments

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

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. Before including your address, phone 
number, email address, or other personal identifying information in 
your comments, 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(c) of the Endangered 
Species Act (16 U.S.C. 1531 et seq.) and its implementing regulations 
(50 CFR 17.22 and 17.32) and the National Environmental Policy Act (42 
U.S.C. 4321 et seq.) and its implementing regulations (40 CFR 1500-1508 
and 43 CFR 46).

Jonathan Snyder,
Acting Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
California.
[FR Doc. 2023-11226 Filed 5-25-23; 8:45 am]
BILLING CODE 4333-15-P