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Santa Clara Valley Habitat Conservation Plan and Natural Community Conservation Plan, CA; Availability of Draft Environmental Impact Statement, Public Meeting, and Receipt of Applications

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Fish and Wildlife Service, Interior.


Notice of availability of Draft Environmental Impact Statement, notice of public meeting, and receipt of applications.


This notice advises the public that we, the U.S. Fish and Wildlife Service (Service), have received applications for incidental take permits pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) from the County of Santa Clara; Cities of San Jose, Gilroy, and Morgan Hill; Santa Clara Valley Transportation Authority, and Santa Clara Valley Water District (Applicants). The Applicants prepared the Draft Santa Clara Valley Habitat Conservation Plan and Natural Community Conservation Plan (HCP/NCCP) pursuant to section 10(a)(1)(B) of the Act and the California Natural Community Conservation Planning Act of 2002 (NCCPA).

This notice announces the availability of the permit applications, Draft HCP/NCCP, Draft Implementing Agreement (IA), and Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS) for public review and comment. The Service is considering the issuance of a 50-year incidental take permit for 21 Covered Species in a 509,883-acre Permit Area. A seventh applicant will also be considered for permit coverage; the Implementing Entity (likely a joint powers agency) that will form prior to permit issuance. The Implementing Entity is described in the Draft HCP/NCCP and Draft IA and would be composed of representatives from each of the Applicants. The Applicants are requesting a permit to incidentally take 11 animal species and Start Printed Page 79014are seeking assurances for 10 plant species. The permit is needed because take of species could occur as a result of proposed Covered Activities.


Written comments must be received by 5 p.m. on April 18, 2011. We will accept comments at two public meetings:

1. Wednesday, February 9, 2011, 6:30 p.m. to 8:30 p.m., Morgan Hill, CA.

2. Tuesday, February 15, 2011, 6:30 p.m. to 8:30 p.m., Palo Alto, CA.


Please send written comments to Cori Mustin, Senior Fish and Wildlife Biologist, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825. You may also submit comments by e-mail to or by facsimile to (916) 414-6713. If you choose to submit comments via e-mail, please ensure that the file size does not exceed 10 megabytes. E-mails that exceed the maximum file size may not be properly transmitted to the Service.

Please send comments related specifically to the Draft EIR and California Environmental Quality Act (CEQA) process to the County of Santa Clara Executive's Office, Kenneth Schreiber, HCP/NCCP Program Manager, County Government Center, East Wing, 11th Floor, 70 West Hedding Street, San Jose, CA 95110. You may also submit comments by facsimile to (408) 295-1613.

The public meeting locations follow:

1. Wednesday, February 9, 2011, at the Morgan Hill Community and Cultural Center, El Toro Room, 17000 Monterey Road, Morgan Hill, CA 95037.

2. Tuesday, February 15, 2011, at the Peninsula Conservation Center, Raptor Room, 3921 East Bayshore Road, Palo Alto, CA 94303.

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Mike Thomas, Branch Chief, Conservation Planning; or Eric Tattersall, Deputy Assistant Field Supervisor/Division Chief, Conservation Planning and Recovery; 2800 Cottage Way, W-2605, Sacramento, CA 95825, or telephone (916) 414-6600.

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Availability of Documents

All documents are available for viewing at the HCP/NCCP's Web site:​www/​default.aspx. Individuals wishing copies of the applications, Draft HCP/NCCP, Draft EIR/EIS, and/or Draft IA, should contact the Service by telephone (see FOR FURTHER INFORMATION CONTACT). Copies of the subject documents are also available for public inspection during regular business hours at the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). In addition, copies of all documents are available at the following library locations:

1. Almaden Branch Library. 6445 Camden Avenue, San Jose, CA 95120.

2. Dr. Martin Luther King, Jr. Library. 150 E San Fernando Street, San Jose, CA 95112.

3. Gilroy Library. 7387 Rosanna Street, Gilroy, CA 95020.

4. Morgan Hill Library. 660 West Main Avenue, Morgan Hill, CA 95037.

5. Central Park Library. 2635 Homestead Road, Santa Clara, CA 95051.

6. City of Palo Alto Main Library. 1233 Newell Road, Palo Alto, CA 94303.

7. Fremont Main Library. 2400 Stevenson Boulevard, Fremont, CA 94538.

Background Information

Section 9 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), and Federal regulations prohibit the “take” of fish and wildlife species federally listed as endangered or threatened. Take of federally listed fish or wildlife is defined under the Act as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed species, or 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, including breeding, feeding, and sheltering (50 CFR 17.3(c)). Under limited circumstances, we may issue permits to authorize incidental take, which is defined under the Act as take that is incidental to, and not the purpose of, otherwise lawful activities. Although take of plant species is not prohibited under the Act, and therefore cannot be authorized under an incidental take permit, plant species are proposed to be included on the permits in recognition of the conservation benefits provided to them under the HCP/NCCP. Regulations governing incidental take permits for threatened and endangered species are found in 50 CFR 17.32 and 17.22, respectively. All species included on the incidental take permits, if issued, would receive assurances under the Service's “No Surprises” regulation (50 CFR 17.22(b)(5) and 17.32(b)(5)).

In order to comply with the requirements of the Act, California Endangered Species Act, and the NCCPA, the Draft HCP/NCCP defines biological goals and objectives; evaluates the effects of Covered Activities on Covered Species, including indirect and cumulative effects; describes a conservation strategy; describes a monitoring and adaptive management program; identifies changed circumstances and responsive actions; identifies funding sources; and identifies alternative actions to the proposed impacts. The Draft HCP/NCCP is intended to be a comprehensive and multijurisdictional document that will facilitate regional species conservation and assist the Applicants to better manage anticipated growth and development. The Draft HCP/NCCP will also provide a coordinated process for permitting and mitigating the incidental take of Covered Species as an alternative to the current project-by-project review process.

The Draft HCP/NCCP addresses 21 Covered Species, including 11 animal species (2 federally endangered, 3 federally threatened, and 6 unlisted) and 10 plant species (4 federally endangered and 6 unlisted). The permit would provide take authorization for all animal species and assurances for all plant species identified by the Draft HCP/NCCP as Covered Species. Take authorized for listed covered animal species would be effective upon permit issuance and adoption of all applicable local ordinances. Take authorization for currently unlisted covered animal species would become effective concurrent with listing, should the species be listed under the Act during the Permit Term.

The proposed permit would include the following five federally listed animal species: The threatened Bay checkerspot butterfly (Euphydryas editha bayensis), threatened California tiger salamander (Central California Distinct Population Segment) (Ambystoma californiense), threatened California red-legged frog (Rana draytonii), endangered least Bell's vireo (Vireo bellii pusillus), and endangered San Joaquin kit fox (Vulpes macrotis mutica). The proposed permit would include assurances for the following four federally listed plant species: The endangered Tiburon Indian paintbrush (Castilleja affinis ssp. neglecta), endangered coyote ceanothus (Ceanothus ferrisae), endangered Santa Clara Valley dudleya (Dudleya setchellii), and endangered Metcalf Canyon jewelflower (Streptanthus albidus ssp . albidus).

The unlisted species proposed for coverage under the Draft HCP/NCCP are the foothill yellow-legged frog (Rana boylii), western pond turtle (Clemmys marmorata), golden eagle (Aquila chrysaetos), western burrowing owl (Athene cunicularia hypugaea), tricolored blackbird (Agelaius tricolor), Start Printed Page 79015Townsend's western big-eared bat (Corynorhinus townsendii townsendii), Mount Hamilton thistle (Cirsium fontinale var. campylon), San Francisco collinsia (Collinsia multicolor), fragrant fritillary (Fritillaria liliacea), Loma Prieta hoita (Hoita strobilina), smooth lessingia (Lessingia micradenia var. glabrata), and most beautiful jewelflower (Streptanthus albidus ssp. peramoenus).

The Applicants are requesting coverage for incidental take resulting from the following seven categories of Covered Activities:

1. Urban Development,

2. Instream Capital Projects,

3. Instream Operation and Maintenance Activities,

4. Rural Capital Projects,

5. Rural Operation and Maintenance Activities,

6. Rural Development, and

7. Conservation Strategy Implementation.

The proposed 509,883-acre Permit Area is the area where incidental take of Covered Species resulting from Covered Activities could occur and includes the Pajaro River and all or a portion of the Llagas, Uvas, Pescadero, and Pacheco subwatersheds and the Coyote Creek watershed within Santa Clara County. A large portion of the Guadalupe watershed is also contained within the Permit Area, as well as small areas outside of each of these watersheds. The Permit Area excludes existing State Park lands.

Contained within the 509,883-acre Permit Area is the 48,464-acre Expanded Permit Area for Burrowing Owl Conservation, which includes the northern portion of Santa Clara County and a small portion of both San Mateo and Alameda Counties (see Figure 1-2 of the HCP/NCCP). Incidental take in the Expanded Permit Area for Burrowing Owl Conservation will be limited to capture, harm, and harassment of burrowing owls as a result of implementing the conservation strategy.

Covered Activities would result in the permanent loss of up to 25,864 acres in the Permit Area. Habitat models were developed for most Covered Species and used in the impacts analysis. Land cover surrogates were used to identify maximum impacts to species for which habitat models could not be developed. The Draft HCP/NCCP also describes conditions on Covered Activities to avoid or minimize take of Covered Species.

The proposed conservation strategy includes establishing a reserve system that would be composed of an estimated 58,000 acres of large contiguous blocks of land that would be permanently preserved, monitored, and managed. The conservation strategy would remain in rough step with impacts, and the Reserve System would be assembled according to predefined milestones throughout the Permit Term.

National Environmental Policy Act Compliance

The Service prepared the EIS, which is the Federal portion of the Draft EIR/EIS, to analyze the impacts of issuing incidental take permits based on the Draft HCP/NCCP. Santa Clara County facilitated the preparation of the EIR portion of the Draft EIR/EIS, in compliance with the CEQA, but all Applicants share the CEQA Lead Agency role. The California Department of Fish and Game is a CEQA Trustee and Responsible Agency. The Draft EIR/EIS was developed to inform the public of the Proposed Action, alternatives, and associated impacts; address public comments received during the scoping period for the Draft EIR/EIS; and disclose irreversible commitments of resources.

The proposed permit issuance triggers the need for compliance with NEPA. The Service published a Notice of Intent (NOI) to prepare an EIR/EIS in the Federal Register on September 6, 2007 (72 FR 51247). The NOI announced a public scoping period during which time the public was invited to provide written comments and attend a public scoping meeting, which was held on September 26, 2007, in Morgan Hill, California.

The Service is now providing notice of the availability of the Draft EIS, which evaluates the impacts of the Proposed Action described above (i.e., issuance of the permits and implementation of the Draft HCP/NCCP), as well as the No Action Alternative and Alternative A, which are described below.

No Action Alternative: Under the No Action Alternative, the Service would not issue incidental take permits to the Applicants, and the Draft HCP/NCCP would not be implemented. Under this alternative, projects that may adversely affect federally listed species would require project-level consultation with the Service pursuant to section 7 or section 10 of the Act. This project-level approach would preclude landscape-level conservation planning and would not streamline the current permitting process.

Alternative A (Reduced Permit Term): Under Alternative A, the Service would issue incidental take permits, and the Applicants would implement a habitat conservation plan and natural communities conservation plan that is similar to the Draft HCP/NCCP described in the Proposed Action; however, the proposed Permit Term would be reduced to 30 years. The extent of Covered Activities and the conservation strategy would be subsequently reduced relative to the Proposed Action.


The Service invites the public to comment on the permit applications, Draft HCP/NCCP, Draft IA, and Draft EIR/EIS during the public comment period (see DATES). Please direct written comments to contacts listed in the ADDRESSES section and questions to the Service contacts listed in the FOR FURTHER INFORMATION CONTACT section. All comments and materials we receive, including names and addresses, will become part of the administrative record and may be released to the public. 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 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.

Reasonable Accommodation

The public meetings are physically accessible to people with disabilities. Please make requests for specific accommodations to Karen Molinari, ICF International, at (408) 375-9979 or, at least 5 working days prior to the meeting date.

Next Steps

This notice is provided under section 10(a) of the Act and Service regulations for implementing the National Environmental Policy Act of 1969 (40 CFR 1506.6). We will evaluate the applications, associated documents, and comments submitted thereon to prepare a Final EIR/EIS. A permit decision will be made no sooner than 30 days after the publication of the NOA of for the Final EIR/EIS and completion of the Record of Decision.

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Dated: December 6, 2010.

Robert Clarke,

Acting Deputy Regional Director, Pacific Southwest Region, Sacramento, California.

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[FR Doc. 2010-31425 Filed 12-16-10; 8:45 am]