[Federal Register: September 2, 2005 (Volume 70, Number 170)]
[Page 52434-52436]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 52434]]



Fish and Wildlife Service

Notice of Availability of a Draft Environmental Impact Statement/
Environmental Impact Report and Receipt of an Application for an 
Incidental Take Permit for the East Contra Costa County Habitat 
Conservation Plan and Natural Community Conservation Plan, Contra Costa 
County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.


SUMMARY: This notice announces the availability of the draft East 
Contra Costa County Habitat Conservation Plan and Natural Community 
Conservation Plan (Plan), draft Implementing Agreement, and draft 
Environmental Impact Statement/Environmental Impact Report (EIS/EIR) 
for public review and comment. In response to receipt of an application 
from the East Contra County Habitat Conservation Plan Association 
(Association), the Fish and Wildlife Service (Service) is considering 
the proposed action of issuing a 30-year permit for 28 species. The 
proposed permit would authorize take of individual members of species 
listed under the Federal Endangered Species Act of 1973, as amended 
(ESA). The permit is needed because take of species could occur during 
proposed urban development activities, rural infrastructure projects, 
and preserve management activities within a 175,435-acre planning area 
located in eastern Contra Costa County, California.

DATES: Two public meetings will be held on: Thursday, October 27, 2005, 
from at 1 p.m. to 3 p.m. and 6 p.m. to 8 p.m. Written comments should 
be received on or before December 1, 2005.

ADDRESSES: The public meetings will be held at: Pittsburg City Hall, 65 
Civic Drive, Pittsburg, California 94565. Send comments by mail or 
facsimile to: (1) Lori Rinek, Division Chief, U.S. Fish and Wildlife 
Office, 2800 Cottage Way, Room W-2605, Sacramento, California 95825; 
facsimile (916) 414-6713; and (2) John Kopchik, Principal Planner, 
Contra Costa County Community Development Department, 651 Pine Street, 
Fourth Floor North Wing, Martinez, California 94553, facsimile (925) 

FOR FURTHER INFORMATION CONTACT: (1) Sheila Larsen, Wildlife Biologist, 
or Lori Rinek, Chief, Conservation Planning and Recovery Division, 
Sacramento Fish and Wildlife Office, telephone (916) 414-6600; or (2) 
John Kopchik, Principal Planner, Contra Costa County Community 
Development Department, e-mail jkopc@cd.cccounty.us, telephone (925) 


Availability of Documents

    Copies of the draft Plan, draft Implementing Agreement and draft 
EIS/EIR are available for public review from 9 a.m. to 5 p.m., at the 
Contra Costa County Community Development Department (see ADDRESSES). 
These documents also are available on the Association's Web site at: 

    In addition, copies of all documents are also available at the 
following Contra Costa County Library locations: 751 Third Street, 
Brentwood, CA; 6125 Clayton Road, Clayton, CA; Freedom High School, 
1050 Neroly Road, Oakley, CA; 80 Power Avenue, Pittsburg, CA; Riverview 
Middle School, 205 Pacifica Avenue, Bay Point, CA.
    You also may obtain copies of these documents for review by 
contacting 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 [see 


    The initial Notice of Intent to prepare a draft EIS/EIR and hold a 
public scoping meeting on July 17, 2003, was published in the Federal 
Register on June 5, 2003 (68 FR 33736). Information on past and 
upcoming meetings is available on the Association's Web site at http://www.cocohcp.org

Background Information

    Section 9 of the Federal ESA of 1973, as amended, and Federal 
regulations prohibit the take of fish and wildlife species listed as 
endangered or threatened (16 U.S.C. 1538). The term ``take'' means to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect, or to attempt to engage in any such conduct (16 U.S.C. 1532). 
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, the Service 
may issue permits to authorize incidental take of listed fish or 
wildlife; i.e., take that is incidental to, and not the purpose of, 
otherwise lawful activity. Regulations governing incidental take 
permits for threatened and endangered species are found in 50 CFR 17.32 
and 17.22, respectively.
    Although take of listed plant species is not prohibited under the 
Federal ESA, and therefore cannot be authorized under an incidental 
take permit, plant species may be included on a permit in recognition 
of the conservation benefits provided to them under a habitat 
conservation plan. All species included on an incidental take permit 
would receive assurances under the Services ``No Surprises'' regulation 
50 CFR 17.22(b)(5) and 17.32(b)(5).
    The Service has received an application for an incidental take 
permit for implementation of the East Contra Costa County Habitat 
Conservation Plan and Natural Community Conservation Plan (Plan). The 
application has been prepared and submitted by the East Contra County 
Habitat Conservation Plan Association (Association), a joint powers 
authority consisting of the following seven agencies: Contra Costa 
County; the cities of Brentwood, Clayton, Oakley, and Pittsburg; Contra 
Costa Water District; and, East Bay Regional Park District. The 
Association has prepared the Plan to satisfy the application 
requirements for a section 10(a)(1)(B) permit under the Federal ESA, of 
1973, as amended, and a section 2835 permit under the California 
Natural Community Conservation Planning Act of 2002 (NCCPA). Thus the 
Plan constitutes a Habitat Conservation Plan pursuant to the Federal 
ESA, and a Natural Community Conservation Plan pursuant to the 
California NCCPA.
    The Association seeks a 30-year incidental take permit for covered 
activities within a proposed 175,435-acre planning area, located 
entirely in eastern Contra Costa County, California. The Association 
has requested a permit for 28 species, 8 of which are currently listed 
as threatened or endangered under the Federal ESA. Of these 28 species, 
the Association requests a permit and assurances for 17 animal species 
and assurances for 11 plant species. Proposed covered species include 3 
wildlife species currently listed as endangered under the Federal ESA 
[San Joaquin kit fox (Vulpes macrotus mutica), longhorn fairy shrimp 
(Brachinecta longiantenna), and vernal pool tadpole shrimp (Lepidurus 
packardi)] and 5 wildlife species currently listed as threatened under 
the Federal ESA [Alameda whipsnake (Masticophis lateralis euryxanthus), 
giant garter snake (Thamnophis gigas), California tiger salamander 
(Ambystoma californiense), California red-legged frog (Rana aurora 
draytonii), and vernal pool fairy shrimp (Brachinecta lynchi)]. 
Proposed covered species also include 9 wildlife species and 11 plant 

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that are not listed under the Federal ESA at the current time: 
Townsend's western big-eared bat (Corynorhinus townsendii townsendii), 
tricolored blackbird (Agelaius tricolor), golden eagle (Aquila 
chrysaetos), western burrowing owl (Athene cunicularia hypugea), 
Swainson's hawk (Buteo swainsonii), silvery legless lizard (Anniella 
pulchra pulchra), western pond turtle (Clemmys marmorata), foothill 
yellow-legged frog (Rana boylii), midvalley fairy shrimp (Brachinecta 
mesovallensis), Mount Diablo manzanita (Arctostaphylos auriculata), 
brittlescale (Atriplex depressa), San Joaquin spearscale (Atriplex 
joanquiniana), big tarplant (Blepharizonia plumosa ssp. plumosa), Mount 
Diablo fairy lantern (Calochortus pulchellus), recurved larkspur 
(Delphinium recurvatum), round-leaved filaree (Erodium macrophyllum), 
Diablo helianthella (Helianthella castanea), Brewer's dwarf flax 
(Hesperolinon breweri), showy madia (Madia radiata), and adobe 
navarretia (Navarretia nigelliformis ssp. nigelliformis).
    If the proposed Plan is approved and the permit issued, take 
authorization of covered listed wildlife species would be effective at 
the time of permit issuance. Take of the currently non-listed covered 
wildlife species would be authorized concurrent with the species' 
listing under the Federal ESA, should they be listed during the 
duration of the permit.
    The proposed Plan is intended to be a comprehensive and multi-
jurisdictional document, providing for regional species conservation 
and habitat planning, while allowing the prospective permitees (the 
County and the cities that are members of the Association) to better 
manage anticipated growth and development. The proposed Plan also is 
intended to provide a coordinated process for permitting and mitigating 
the take of covered species as an alternative to the current project-
by-project approach.
    If the proposed Plan is approved and a permit is issued to the 
Association, project proponents would submit applications for 
incidental take authorization to their local land use authority 
(members of the Association holding a valid permit) as part of the 
standard project review and approval process. The local land use 
authority would review these applications for completeness and for 
compliance with the terms of the Plan. Take authorization would be 
issued to these parties by the local land use authority if the 
application is complete and compliant with the Plan. As part of the 
standard approval process, projects would require separate, project-
level environmental review under the California Environmental Quality 
Act and, in some cases, the National Environmental Policy Act.
    An Implementing Entity created by the Association would be 
responsible for conducting broad conservation and management measures, 
such as acquiring and maintaining preserve land, restoring and 
enhancing habitat, tracking the success of the conservation strategy, 
and instituting any necessary changes. Projects conducted by the 
Implementing Entity would be consistent with the Plan and receive 
coverage for take.
    In order to comply with the requirements of the Federal ESA, 
California ESA, and the California NCCPA, the proposed Plan addresses a 
number of required elements, including: species and habitat goals and 
objectives; evaluation of the effects of covered activities on covered 
species, including indirect and cumulative effects; a conservation 
strategy; a monitoring and adaptive management program; descriptions of 
changed circumstances and remedial measures; identification of funding 
sources; and an assessment of alternatives to take of listed species.
    In order to define a reasonable range of expected growth, the 
proposed Plan defines two permit areas: the initial urban development 
area and the maximum urban development area. Although the initial and 
maximum urban development areas bound the range of the proposed permit 
area, the final permit area may lie somewhere in between, depending on 
local land use decisions that occur during the proposed 30-year permit 
term. The proposed Plan therefore encompasses a range of alternative 
permit areas. Both the initial and maximum urban development areas are 
based on current general plans of the local jurisdictions.
    The proposed initial urban development area is defined by: (1) The 
Urban Limit Line (ULL) of Contra Costa County and the city limits of 
the participating cities (Pittsburg, Clayton, Oakley, and Brentwood), 
whichever is largest; (2) the footprint of specific rural 
infrastructure projects outside the ULL; and (3) the boundary of any 
land acquired in fee title or conservation easement and managed under 
the Plan. Up to 8,949 acres of ground-disturbing urban development 
activities within the ULL are proposed to be permitted under the 
initial urban development area.
    The proposed maximum urban development area is the largest extent 
to which the permit area could expand under the terms of the proposed 
Plan. Under this scenario, an additional 4,252 acres of ground-
disturbing urban development activities within the permit area (for a 
maximum of 13,201 acres) could be allowed, as long as the conditions of 
the Plan are met.
    Proposed covered activities and projects within the Plan fall 
within three distinct categories: Activities and projects associated 
with urban growth within the urban development area; rural 
infrastructure projects (totaling approximately 1,302 acres outside the 
ULL); and activities that occur inside the Plan preserves. Proposed 
activities within the Plan preserves include the following: 
Construction and maintenance of recreational or management facilities; 
habitat enhancement, restoration and creation; surveys for covered 
species, vegetation communities, and other resources; and emergency 
activities, including firefighting, and repair of existing facilities 
due to floods or fire. During the permit term, the proposed neighboring 
lands provision would allow agricultural lands within 1 mile of the 
preserve boundary to be eligible for take coverage during the course of 
routine agricultural activities with certain provisions and 
    The conservation strategy was designed to minimize and mitigate the 
impacts of covered activities, contribute to the recovery of listed 
covered species, and protect and enhance populations of non-listed 
covered species, as proposed. The proposed conservation strategy 
provides for the establishment, enhancement, and long-term management 
of the preserves for the benefit of covered vegetation communities, 
covered species, and overall biodiversity and ecosystem functions. The 
proposed preserves would also serve to achieve other complementary 
goals such as recreation, grazing, and crop production, as long as the 
primary biological goals of the Plan are met and not compromised. The 
system of new preserves would likely be linked to existing protected 
lands to form a network of protected areas outside the area where new 
urban growth is proposed to be permitted under the Plan.

National Environmental Policy Act Compliance

    Proposed permit issuance triggers the need for compliance with the 
National Environmental Policy Act (NEPA) and the California 
Environmental Quality Act (CEQA). Accordingly, a joint NEPA/CEQA 
document has been prepared. The Service is the Lead Agency responsible 
for compliance under NEPA, and the Association is the Lead Agency with 
responsibility for compliance with CEQA. As NEPA lead

[[Page 52436]]

agency, the Service is providing notice of the availability of the 
draft EIS/EIR, which evaluates the impacts of proposed issuance of the 
permit and implementation of the Plan, and as well as a reasonable 
range of alternatives.
    The draft EIS/EIR analyzes three alternatives in addition to the 
proposed Plan, described above. The proposed Plan is considered 
Conservation Strategy A (Alternative 1). The three alternatives are 
described below.
    The Conservation Strategy B Alternative (Alternative 2) would 
provide for the same size planning area, located entirely in eastern 
Contra Costa County, with the same preserve size as the proposed Plan, 
except that the location of the preserve would be modified. 
Modification of the preserve locations would result in increased 
protection of chaparral and cultivated agriculture and decreased 
protection of grassland. Conservation Strategy B would also involve 
less riparian restoration than the proposed Plan. Other elements of the 
proposed Plan would remain the same under Conservation Strategy B, 
including species and communities covered, conservation measures, 
monitoring and adaptive management, and implementation approach.
    Compared to the Proposed Plan, the Reduced Development Area 
Alternative (Alternative 3) would provide for a reduced level of take 
due to a reduced permit area. Existing open space or agricultural lands 
within the ULL that are not currently designated for development would 
be conserved. Under this alternative, the permit area would be 9,330 
acres. Other elements of the proposed Plan would remain the same under 
the Reduced Development Area Alternative, including species and 
communities covered, conservation measures, monitoring and adaptive 
management, and implementation approach.
    Under the No-Action/No-Project alternative (Alternative 4), the 
proposed Plan would not be adopted, and permits pursuant to Section 
10(a)(1)(B) of the Act and Section 2835 of the NCCPA would not be 
issued by the Service and California Department of Fish and Game, 
respectively. Compliance with the Federal and California ESAs would 
continue to be addressed on a case-by-case basis.

Public Comments

    The Service and Association invite the public to comment on the 
draft Plan, draft EIS/EIR, and draft Implementing Agreement during a 
90-day public comment period beginning on the date of this notice. The 
comment period is opened for 90 days to eliminate the need for an 
extension subsequent to the close of the comment period. All comments 
received, including names and addresses, will become part of the 
administrative record and may be made available to the public.
    The Service will evaluate the application, associated documents, 
and comments submitted to them to prepare a final EIS/EIR. A permit 
decision will be made no sooner than 30 days after the publication of 
the final EIS/EIR and completion of the Record of Decision.
    This notice is provided pursuant to section 10(a) of the Federal 
ESA and Service regulations for implementing NEPA, as amended (40 CFR 
1506.6). We provide this notice in order to allow the public, agencies, 
or other organizations to review and comment on these documents.

    Dated: August 17, 2005.
Ken McDermond,
Deputy Manager, California/Nevada Operations Office, Sacramento, CA.
[FR Doc. 05-16899 Filed 9-1-05; 8:45 am]