[Federal Register: May 11, 2001 (Volume 66, Number 92)]
[Page 24150-24151]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of a Habitat Conservation Plan and Receipt of an 
Application for an Incidental Take Permit for Deer Canyon Park Preserve 
in the City of Anaheim, Orange County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: This notice advises the public that the City of Anaheim 
(Applicant) has applied to the 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. The proposed permit would 
authorize the incidental take of the federally threatened coastal 
California gnatcatcher (Polioptila californica californica) in Deer 
Canyon Park Preserve, in the City of Anaheim, Orange County, 
California. Take would occur through the permanent loss of 1.39 acres 
of coastal sage scrub habitat during facility development and fuel 
management. The Applicant seeks a permit for a period of 30 years.
    We request comments from the public on the permit application, 
which is available for review. The application also includes a Habitat 
Conservation Plan (HCP). The HCP describes the proposed project and the 
measures that the Applicant would undertake to minimize and mitigate 
take of coastal California gnatcatcher. We also request comments on our 
preliminary determination that the HCP qualifies as a ``low-effect'' 
habitat conservation HCP, eligible for a categorical exclusion under 
the National Environmental Policy Act (NEPA).

DATES: Written comments should be received on or before June 11, 2001.

ADDRESSES: Written comments should be addressed to the Field 
Supervisor, Fish and Wildlife Service, 2730 Loker Avenue West, 
Carlsbad, California 92008. Comments may be sent by facsimile to 
telephone (760) 431-9624.

FOR FURTHER INFORMATION CONTACT: Karen Evans, Division Chief, Los 
Angeles and Orange Counties, at the above address or call (760) 431-


Availability of Documents

    You may obtain copies of the documents for review by calling the 
Service's Carlsbad Fish and Wildlife Office at the above referenced 
telephone number. Documents also are available for public inspection, 
by appointment, during normal business hours at the above address.


    Section 9 of the Endangered Species Act, and its implementing 
regulations, prohibit the ``take'' of fish or wildlife species listed 
as endangered or threatened species. Take means to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture or collect listed 
animal species, or attempt to engage in such conduct (16 U.S.C. 1538). 
Harm may include significant habitat modification where it actually 
kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding, and sheltering [50 
CFR 17.3(c)]. The Service may, under certain circumstances, issue 
permits to authorize take of endangered or threatened wildlife species 
incidental to, and not the purpose of, otherwise lawful activities. 
Regulations governing permits for endangered or threatened species are 
found at 50 CFR 17.22 and 17.32.
    Under the proposed action, improvement of park facilities and fire 
management activities would directly impact the coastal California 
gnatcatcher by removing 1.39 acres of coastal sage scrub vegetation 
utilized by coastal California gnatcatchers. The Deer Canyon Park 
Preserve totals approximately 130 acres. The Applicant's HCP describes 
consideration of alternatives to the action and provisions for 
minimization and mitigation of impacts.
    The HCP is further designed to assure that this action does not 
reduce the potential for survival and recovery of the coastal 
California gnatcatcher in the wild, as mandated by requirements of 50 
CFR Part 17.22(b)(1)(iii).
    The HCP proposes the following measures to minimize the impacts of 
the project on coastal California gnatcatchers: (1) Fuel modification 
and clearing of coastal sage scrub will be conducted outside the 
gnatcatcher breeding season. If it is necessary to clear coastal sage 
scrub during the breeding season, surveys by a qualified biologist must 
demonstrate that gnatcatchers are not nesting or rearing chicks in the 
affected area; (2) a project monitor will be present during all 
clearing activities to make sure no birds or nests are directly harmed 

[[Page 24151]]

destroyed; (3) construction limits will be fenced or flagged prior to 
construction activities to avoid inadvertent disturbance of areas 
outside the construction zone; (4) the proper use and disposal of oil 
and gasoline will be enforced; and (5) all trash associated with 
construction activities will be properly contained and disposed.
    To mitigate for the permanent loss of occupied habitat due to the 
proposed activities, the Applicant proposes to revegetate 6.0 acres of 
non-native grassland in Deer Canyon Park Preserve with coastal sage 
scrub vegetation. The revegetated area would connect patches of 
fragmented coastal sage scrub that lie to the north and south. A 
restoration HCP will be developed that includes performance criteria, 
such as percent cover by native and non-native plants, native plant 
diversity, and evidence of natural reproduction, which must be met. The 
restoration plan must be reviewed and approved by the U.S. Fish and 
Wildlife Service.
    The HCP considered the following alternatives: (1) The proposed 
project; (2) use of a mitigation fee; (3) redesign of the project; and 
(4) no project or no action alternative.
    The proposed project involves the issuance of a permit under 
section 10(a)(1)(B) of the Act to authorize the incidental take of the 
threatened coastal California gnatcatcher during facilities improvement 
and fire management activity. The project impacts 1.39 acres of coastal 
sage scrub occupied by the coastal California gnatcatcher. Mitigation 
for the project is the revegetation of 6.0 acres of non-native 
grassland with coastal sage scrub vegetation.
    The use of a mitigation fee to compensate for the loss of coastal 
sage scrub, as outlined in the Central and Coastal Orange County 
Natural Community Conservation Plan (NCCP), is not authorized for this 
project because Deer Canyon Park Preserve is designated as an Existing 
Use Area, and the in-lieu fee mitigation program is not available to 
mitigate for take of gnatcatchers within Existing Use Areas unless 
specifically authorized by the U.S. Fish and Wildlife Service and 
California Department of Fish and Game.
    Under the redesign alternative, the applicant would redesign the 
project to further reduce impacts to coastal sage scrub vegetation. The 
applicant states that it is not possible to further redesign the 
project and meet project goals.
    Under the No Project alternative the project would not occur. 
Therefore an incidental take permit would not be required and the 
Applicant would abandon the proposed project.
    The Service has determined that the HCP qualifies as a ``Low 
Effect'' Habitat Conservation Plan as defined by the Fish and Wildlife 
Service's Habitat Conservation Planning Handbook (November 1996). Our 
determination that a habitat conservation plan qualifies as a low-
effect plan is based on the following three criteria: (1) 
Implementation of a plan would result in minor or negligible effects on 
federally listed, proposed, and candidate species and their habitats; 
(2) implementation of a plan would result in minor or negligible 
effects on other environmental values or resources; and (3) impacts of 
a plan, 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 
which would be considered significant.
    The Service therefore has made a preliminary determination that 
approval of the 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). Based on this preliminary determination, we 
do not intend to prepare further NEPA documentation. The Service will 
consider public comments in making its final determination on whether 
to prepare such additional documentation.
    This notice is provided pursuant to section 10(a) of the Endangered 
Species Act and Service regulations for implementing the National 
Environmental Policy Act of 1969 (40 CFR 1506.6). The Service will 
evaluate the permit application, the HCP, and the associated documents 
and comments submitted thereon to determine whether the application 
meets the requirements of section 10(a) of the Endangered Species Act. 
If we determine that the requirements are met, we will issue a permit 
for the incidental take of the coastal California gnatcatcher. A final 
decision on permit issuance will be made no sooner than 30 days from 
the date of this notice.

    Dated: April 23, 2001.
Jill Parker,
Acting Deputy Manager, California/Nevada Operations Office, Fish and 
Wildlife Service, Sacramento, California.
[FR Doc. 01-11897 Filed 5-10-01; 8:45 am]