[Federal Register: January 25, 2005 (Volume 70, Number 15)]
[Page 3546-3548]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of an Environmental Assessment and Receipt of an 
Application for an Incidental Take Permit for the Lamont Public Utility 
District in Kern County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.


SUMMARY: The Lamont Public Utilities District (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 (Act). The Service is considering the issuance of a 
50-year permit to the Applicant that would authorize take of the 
endangered Tipton kangaroo rat (Dipodomys nitratoides nitratoides), the 
endangered San Joaquin kit fox (Vulpes macrotis mutica), and the 
western burrowing owl (Athene cunicularia), a species of special 
concern, incidental to otherwise lawful activities. Such take would 
occur during the proposed construction and operation of the Applicant's 
effluent disposal site expansion on a 160-acre site south of Lamont, 
Kern County, California. The proposed expansion includes the 
construction of two ponds, a series of leaching terraces, and access 
roads. The proposed project would affect suitable habitat for the San 
Joaquin kit fox and western burrowing owl, and permanently affect about 
19 acres of occupied habitat of the Tipton kangaroo rat.
    We request comments from the public on the permit application and 
Environmental Assessment, both of which are available for review. The 
permit application includes the proposed Habitat Conservation Plan 
(Plan) and an accompanying Implementing Agreement. The Plan describes 
the proposed action and the measures that the Applicant would undertake 
to minimize and mitigate take of the covered species.

DATES: We must receive your written comments on or before March 28, 

ADDRESSES: Please address written comments to Lori Rinek, Chief, 
Conservation Planning and Recovery Division, U.S. Fish and Wildlife 
Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, 
Sacramento, California 95825. You also may send comments by facsimile 
to (916) 414-6713.

Biologist, or Lori Rinek, Chief, Conservation Planning and Recovery 
Division at the Sacramento Fish and Wildlife Office at (916) 414-6600.


Availability of Documents

    You may obtain copies of these documents for review by contacting 
Jesse Wild or Lori Rinek [see FOR FURTHER INFORMATION CONTACT]. 
Documents also will be available for public inspection, by appointment, 
during normal business hours at the Sacramento Fish and Wildlife Office 


    Section 9 of the Act and Federal regulations prohibit the ``take'' 
of fish and wildlife species listed as endangered or threatened. Take 
of federally listed fish and wildlife is defined under the Act to 
include the

[[Page 3547]]

following activities: to harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect, or to attempt to engage in any such 
conduct. The Service may, under limited circumstances, issue permits to 
authorize incidental take (i.e., take that is incidental to, and not 
the purpose of, the carrying out of an otherwise lawful activity). 
Regulations governing incidental take permits for endangered species 
are found in 50 CFR 17.22.
    In response to California Regional Water Quality Board 
requirements, the Applicant proposes to expand their current sewage 
effluent disposal facility to the southeast onto an adjacent 160-acre 
parcel located about 2.5 miles directly south of the town of Lamont 
(0.5 mile south of Bear Mountain Boulevard, State Route 223), 
immediately to the west of Wheeler Ridge Road (State Route 184) in Kern 
County, California.
    On the northwest corner of the site, the Applicant proposes to 
construct two treatment ponds on approximately 21 acres. This pond 
construction would be located in unoccupied and previously disturbed 
areas as reported by completed survey and trapping records. Activities 
presently occurring in this area include composting and agriculture. 
The remaining 139 acres of the propetry would be graded for access 
roads, leveled, and planted in corn, alfalfa, or other forage crops for 
non-human consumption that can be irrigated and harvested periodically 
through standard cultivating and harvesting techniques.
    A series of terraced benches may be constructed on the east side of 
the site, which is designated for agricultural use. Effluent would be 
spread aerially onto the benches, which would be about 600 feet wide, 
with a 4-foot gently-sloped drop between each bench. The terraced 
leaching benches would be used sequentially, allowing evaporation and 
infiltration of the effluent into the soil while water is being spread 
on other benches. The effluent would be spread on each pad as needed. 
Following the completion of infiltration and drying, each bench would 
be disked several times each year to maintain the highest levels of 
permeability and percolation. Winter wheat, corn, alfalfa, or another 
forage crop may be planted on the benches and harvested periodically.
    The project site contained about 19 acres of habitat occupied by 
the Tipton kangaroo rat, according to survey trapping and mapping 
efforts concluded in 1995. The Service has concluded that 
implementation of the proposed project will likely result in take of 
Tipton kangaroo rats through the removal or repeated disturbance of 
habitat on the site.
    Although no San Joaquin kit foxes were observed nor evidence found 
of their denning at the time of biological surveys, they may range 
through and periodically use the site for foraging and/or denning. The 
expansion and operation of the facilities is unlikely to result in 
direct mortality or injury of San Joaquin kit foxes, but may result in 
take in the form of harassment.
    The western burrowing owl may occupy California ground squirrel 
(Spermophilus beecheyi) burrows adjacent to agricultural fields or 
along canal road ditches and berms, and may inhabit pipes and culverts 
on the project site. The owls may be displaced, killed, or disturbed by 
the construction of the project. Owls that occupy the site following 
the completion of construction may be affected by grading, blading, or 
    The Applicant proposes to implement specific measures to minimize 
take and associated adverse project impacts to covered species. The 
Applicant also proposes to mitigate for take by purchase of 57 acres of 
compensation credits at the California Department of Fish and Game's 
Coles Levee Preserve in Kern County which supports all of the covered 
species. The compensation includes funds supporting a management 
endowment to ensure the permanent management and monitoring of 
sensitive species and habitats within the area protected by the Coles 
Levee Preserve.
    The Service's Environmental Assessment considers the environmental 
consequences of the following alternatives. Alternative A consists of 
no permit issuance and no expansion of the Applicant's effluent 
disposal site at this time. Compared to the Preferred Alternative, 
Alternative A would result in less long-term conservation for the 
covered species within Kern County, and the Applicant would be in 
continued violation of California Regional Water Quality Board 
regulations. Alternative B (or the Preferred Alternative) consists of 
the issuance of the incidental take permit and implementation of the 
Plan and Implementing Agreement.
    In addition, two additional alternatives were considered but 
eliminated from analysis. Alternative C discusses the option of 
constructing a sewage recycling plant with zero discharge. This type of 
plant is technologically feasible and would occupy much less land than 
one requiring an effluent spreading ground in accordance with State and 
Federal regulations. This alternative would result in less take of 
covered species habitat than the Preferred Alternative. However, it is 
extremely costly and, therefore, not an economically feasible 
alternative for the small town of Lamont. Alternative D discusses the 
purchase of a site for effluent disposal other than the one proposed in 
the Preferred Alternative. Surrounding sites have not been surveyed for 
covered species, so it has not been determined that there would be more 
or less take at any alternative site. Additionally, no sites are 
available for purchase within close proximity to the existing ponds 
that are not already in dairy or agriculture. Conserving prime 
agricultural land is also a concern, therefore, the use of the site in 
Alternative B is preferable since it has been degraded in various ways 
and would require modification prior to conventional agricultural 
    Pursuant to an order issued on June 10, 2004, by the District Court 
for the District of Columbia in Spirit of the Sage Council v. Norton 
Civil Action No. 98-1873 (D.D.C.), the Service was enjoined from 
issuing new section 10(a)(1)(B) permits or related documents containing 
``No Surprises'' assurances, as defined by the Service's ``No 
Surprises'' rule published at 63 FR 8859 (February 23, 1998), until 
such time as the Service adopts new permit revocation rules 
specifically applicable to section 10(a)(1)(B) permits in compliance 
with the public notice and comment requirements of the Administrative 
Procedures Act. In compliance with the court order, the Service 
published a final permit revocation rule (69 FR 71723) on December 10, 
2004. This new permit revocation rule becomes effective on January 10, 
2005. Until such time as the June 10, 2004, order has been rescinded by 
the court or the Service's authority to issue permits with ``No 
Surprises'' assurances has been otherwise reinstated, the Service will 
not approve any incidental take permits or related documents that 
contain ``No Surprises'' assurances.
    This notice is provided pursuant to section 10(a) of the Act and 
the regulations of the National Environmental Policy Act (NEPA) of 1969 
(40 CFR 1506.6). All comments that we receive, including names and 
addresses, will become part of the official administrative record and 
may be made available to the public. We will evaluate the application, 
associated documents, and comments submitted thereon to determine 
whether the application meets the requirements of NEPA regulations and 
section 10(a) of the Act. If we determine that those requirements are 
met, we will issue a

[[Page 3548]]

permit to the Applicant for the incidental take of the covered species. 
We will make our final permit decision no sooner than 60 days from the 
date of this notice.

    Dated: January 6, 2005.
Nicole Alt,
Acting Deputy Manager, California/Nevada Operations Office.
[FR Doc. 05-1287 Filed 1-24-05; 8:45 am]