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Proposed Otay Water District Low Effect Habitat Conservation Plan for the Quino Checkerspot Butterfly and Coastal California Gnatcatcher

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Fish and Wildlife Service, Interior.


Notice of availability.


We, the U. S. Fish and Wildlife Service (Service), have received an application from the Otay Water District (Applicant) for a 15-year incidental take permit for two covered species pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of the federally endangered Quino checkerspot butterfly (Euphydryas editha quino) and the federally threatened coastal California gnatcatcher (Polioptila californica californica) associated with the operation and maintenance of the existing recycled water pipeline (the Otay Force Main) and its access road. A conservation program to mitigate for the project activities would be implemented by the Applicant as described in the Otay Water District Low Effect Habitat Conservation Plan for the Quino Checkerspot Butterfly and Coastal California Gnatcatcher (HCP), which would be implemented by the Applicant.

We are requesting comments on the HCP and our preliminary determination that the proposed plan qualifies as a “low-effect” Habitat Conservation Plan, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. The basis for this determination is discussed in the Environmental Action Statement (EAS) and Low Effect Screening Form (Screening Form), which is also available for public review.


Written comments should be received on or before November 19, 2008.


Comments should be addressed to the Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Written comments may be sent by facsimile to (760) 431-5901.

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Ms. Karen Goebel, Assistant Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES); telephone (760) 431-9440. Start Printed Page 62309

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Availability of Documents

Individuals wishing copies of the proposed HCP and Screening Form, which includes the EAS, should immediately contact the Service by telephone at (760) 431-9440 or by letter to the Carlsbad Fish and Wildlife Office. Copies of the proposed HCP and Screening Form also are available for public inspection during regular business hours at the Carlsbad Fish and Wildlife Office (see ADDRESSES).


Section 9 of the Act (16 U.S.C. 1531 et seq.) and its implementing Federal regulations prohibit the take of animal species listed as endangered or threatened. Take is defined under the Act as follows, 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, under section 10(a) of the Act, the Service may issue permits to authorize incidental take of listed species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species, respectively, are found in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

The Applicant is seeking a permit for take of the Quino checkerspot butterfly and coastal California gnatcatcher during the life of the permit. These species are referred to as the “Quino” and “gnatcatcher,” respectively, in the proposed HCP.

The Applicant proposes to grade an existing access road located above the Otay Force Main (force main) pipeline and conduct other activities such as replacing valves along the pipeline, resurfacing damaged sections of the access road, clearing vegetation around work areas, and conducting routine inspections and maintenance of the valves and access road. Work areas and the access road are located within a 30-foot easement on the San Diego National Wildlife Refuge. This easement was dedicated prior to the area being incorporated as a national wildlife refuge. All covered activities identified in the low-effect HCP will occur within this easement and new impacts associated with covered activities will not appreciably exceed those currently taking place within the easement. Work areas will be maintained free of vegetation for the life of the permit, thus all initial vegetation clearing activities will be considered permanent impacts. Valve replacement and access road resurfacing will be conducted within the first year of HCP implementation. Activities in subsequent years will entail inspection of the force main, maintenance of work areas, and replacing defective or damaged values. Up to 1.28 acres of gnatcatcher and/or Quino habitat may be lost through implementation of the HCP over 15 years.

The Applicant proposes to mitigate the effects to Quino and gnatcatcher by fully implementing the HCP. The HCP emphasizes protection of habitat through impact avoidance and use of operational protocols, designed to avoid or minimize impacts to Quino and gnatcatcher. The Applicant will supplement these operational protocols, or avoidance and minimization measures, with habitat conservation and management in the San Miguel Habitat Management Area (HMA). To mitigate for permanent impacts, the Applicant will permanently conserve and manage high-quality Quino and gnatcatcher habitat by expending available credits from the San Miguel HMA.

The Proposed Action consists of the issuance of an incidental take permit and implementation of the proposed HCP, which includes measures to mitigate impacts of the proposed activities on Quino and gnatcatcher. Five alternatives to the proposed action are considered in the HCP. Under the No Action Alternative, no permit would be issued and the Applicant would avoid take of Quino and gnatcatcher; however, avoidance of impacts would not be possible for some of the Applicant's activities, which would preclude some critical activities from being completed or require the Applicant to seek individual take authorizations. The other four alternatives address only implementing a single construction component of the proposed activities, eliminating an activity, or deferring the project until a larger, multi-agency multiple species habitat conservation plan could be developed. Most of these alternatives would provide a piecemeal approach to operating and maintaining the force main and would require additional consultation under the ESA. The proposed HCP provides more comprehensive coverage of necessary activities and conservation of Quino and gnatcatcher than either of the other alternatives. In addition, the proposed HCP would be more efficient and timely and would provide the Applicant with long-term predictability concerning the nature of its operations for which incidental takings are permitted, avoiding potential facility-compromising delays.

The Service has made a preliminary determination that approval of the proposed HCP qualifies as a categorical exclusion under NEPA, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1) and as a “low-effect” plan as defined by the Habitat Conservation Planning Handbook (November 1996). Determination of Low-effect Habitat Conservation Plans is based on the following three criteria: (1) Implementation of the proposed HCP would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) Implementation of the proposed HCP would result in minor or negligible effects on other environmental values or resources; and (3) Impacts of the proposed 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.

Public Review

Written comments from interested parties are welcome to ensure that the issues of public concern related to the proposed action are identified. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the office listed in the ADDRESSES section of this notice. All comments and materials received, including names and addresses, will become part of the administrative record and may be released to the public.

Our practice is to make comments, including names, home addresses, home phone numbers, and e-mail addresses of respondents, available for public review. Individual respondents may request that we withhold their names and/or home addresses, etc., but if you wish us to consider withholding this information you must state this prominently at the beginning of your comments. In addition, you must present a rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, Start Printed Page 62310documentable circumstances, this information will be released. We will always make submissions from organization or businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety.

This notice is provided pursuant to section 10(c) of the Act. We will evaluate the permit application, the proposed HCP, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, we will issue a permit to the Applicant for the incidental take of the Quino checkerspot butterfly and coastal California gnatcatcher associated with the operation and maintenance of the Otay Force Main within the San Diego National Wildlife Refuge located in San Diego County, California.

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Dated: October 14, 2008.

Jim A. Bartel,

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

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[FR Doc. E8-24882 Filed 10-17-08; 8:45 am]