[Federal Register: November 13, 2006 (Volume 71, Number 218)]
[Page 66188-66191]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Notice of Availability of a Final Environmental Impact Statement 
for the Orange County Southern Subregion Natural Community Conservation 
Plan/Habitat Conservation Plan, Orange County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: This notice announces the availability of the final 
Environmental Impact Statement (EIS) prepared pursuant to the National 
Environmental Policy Act (NEPA) for the Orange County Southern 
Subregion Natural Community Conservation Plan/Habitat Conservation Plan 
(Plan), for public review and comment. The Fish and Wildlife Service 
(Service) is considering the proposed action of issuing three 75-year 
incidental take permits, pursuant to section 10(a)(1)(B) of the Federal 
Endangered Species Act of 1973, as amended (ESA), for 32 species in 
response to receipt of applications from the County of Orange (County), 
Rancho Mission Viejo, LLC (RMV) and Santa

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Margarita Water District (SMWD) (Applicants). The proposed permits 
would authorize take of individual members of animal species listed 
under the ESA. The permits are needed because take of species could 
occur during proposed urban development activities and associated 
infrastructure on Rancho Mission Viejo, expansion of the Prima Deshecha 
Landfill, the extension of Avenida La Pata, maintenance and operation 
of Santa Margarita Water District facilities, and reserve management 
activities within an approximately 132,000-acre Plan Area in southern 
Orange County, California.
    The Orange County Southern Subregion Habitat Conservation Plan also 
serves as a proposed Natural Community Conservation Plan under the 
State of California's Natural Community Conservation Planning Act 
(NCCPA). The EIS analyzes the impacts of the Plan/NCCP and a Master 
Streambed Alteration Agreement which involves action by the County of 
Orange and the California Department of Fish and Game. For that reason, 
the EIS also serves as an Environmental Impact Report (EIR) to satisfy 
requirements of the California Environmental Quality Act (CEQA) in 
addition to those of the National Environmental Policy Act (NEPA). 
Comments regarding the Final EIS/EIR may be submitted to the Service 
pursuant to NEPA during a 30-day waiting period [See DATES].

DATES: Written comments should be received on or before December 13, 

ADDRESSES: Comments should be sent to Mr. Jim Bartel, Field Supervisor, 
U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Carlsbad, California 92011. You may also submit 
comments by facsimile to 760-918-0638.

FOR FURTHER INFORMATION CONTACT: Ms. Karen Goebel, Assistant Field 
Supervisor, 6010 Hidden Valley Road, Carlsbad, California 92011, 760-


Availability of Documents

    Copies of the Plan and Appendices A-X, the Map Book, the 
Implementation Agreement, and the Final EIS/EIR are available for 
public review, by appointment, during regular business hours, at the 
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION 
CONTACT). Copies are also available for viewing in select local 
southern Orange County public libraries (listed below), the Orange 
County Resources and Development Management Department, and at the 
following Web site: http://www.ocplanning.net.

    1. Dana Point Library--Reference Desk, 33841 Niguel Road, Laguna 
Niguel, California 92629;
    2. Laguna Hills Library--Reference Desk, 25555 Alicia Parkway, 
Laguna Hills, California 92653;
    3. Laguna Niguel Library--Reference Desk, 30341 Crown Valley 
Parkway, Laguna Niguel, California 92677;
    4. Mission Viejo Library--Reference Desk, 100 Civic Center, Mission 
Viejo, California 92691;
    5. Rancho Santa Margarita Library--Reference Desk, 30902 La 
Promesa, Rancho Santa Margarita, California 92688;
    6. San Clemente Library--Reference Desk, 242 Avenida Del Mar, San 
Clemente, California 92672;
    7. San Juan Capistrano Library--Reference Desk, 31495 El Camino 
Real, San Juan Capistrano, California 92675; and
    8. Orange County Resources & Development Management Department--Tim 
Neely, 300 North Flower Street, Santa Ana, California 92702.

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). 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(b) and 
17.22(b), 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 are proposed to be included on the permits in 
recognition of the conservation benefits provided to them under the 
Plan. All species included on an incidental take permit would receive 
assurances under the Service's ``No Surprises'' regulation (50 CFR 
17.22(b)(5) and 17.32(b)(5)).
    The Service has received applications for incidental take permits 
supported, in part, by the Plan. The applications were prepared and 
submitted by the three Applicants to satisfy the application 
requirements for a section 10(a)(1)(B) permit under the Federal ESA, of 
1973, as amended, a section 2835 permit under the California Natural 
Community Conservation Planning Act of 1991 (NCCPA), and a streambed 
alteration agreement under section 1600 et seq. of the California Fish 
and Game Code. Thus, the Plan constitutes a Habitat Conservation Plan 
pursuant to the Federal ESA, and a Natural Community Conservation Plan 
pursuant to the NCCPA, and also addresses the proposed master streambed 
alteration agreement pursuant to the California Department of Fish and 
Game Code.
    The Applicants seek 75-year incidental take permits authorizing 
take incidental to covered activities within a proposed 132,000-acre 
Plan Area, located entirely in southern Orange County, California. The 
Plan is one of two large, multiple-jurisdiction habitat planning 
efforts in Orange County, each of which constitutes a ``subregional'' 
plan under the NCCPA.
    The applicants have requested permits for 32 species, seven of 
which are currently listed as threatened or endangered under the 
Federal ESA. Of these 32 species, the Applicants request incidental 
take permits for 25 animal species and assurances for seven plant 
species, all of which are collectively referred to as ``Covered 
Species'' by the Plan. Of the seven plant species, one is listed as 
threatened [Thread-leaved Brodiaea (Brodiaea filifolia)] and six are 
unlisted [California Scrub Oak (Quercus berberidifolia), Chaparral 
Beargrass (Nolina cismontana), Coast Live Oak (Quercus agrifolia), 
Coulter's Saltbush (Atriplex coulteri), Many-stemmed Dudleya (Dudleya 
multicaulis), and Southern Tarplant (Centromadia parryi var. 
australis)]). In addition, two invertebrate species, both listed as 
endangered [Riverside Fairy Shrimp (Streptocephalus woottoni) and San 
Diego Fairy Shrimp (Branchinecta sandiegonensis)] are covered; two 
unlisted fish species, [Arroyo Chub (Gila orcutti) and Partially-
armored Threespine Stickleback (Gasterosteus aculeatus 
microcephalus)]); two amphibian species, one listed as endangered 
[Arroyo Toad (Bufo californicus)] and one unlisted [Western Spadefoot 
Toad (Spea hammondii)]); seven unlisted reptile species [California 
Glossy Snake (Arizona elegans occidentalis), Coast Patch-nosed Snake 
(Salvadora hexalepis virgultea), Northern Red-diamond Rattlesnake

[[Page 66190]]

(Crotalus ruber ruber), Orange-throated Whiptail (Aspidoscelis 
hyperythra), Red Coachwhip (Masticophis flagellum piceus), San Diego 
``Coast'' Horned Lizard (Phrynosoma coronatum), and Southwestern Pond 
Turtle (Emys [=Clemmys] marmorata pallida)]); and 12 bird species, two 
listed as endangered [Least Bell's Vireo (Vireo bellii pusillus) and 
Southwestern Willow Flycatcher (Empidonax traillii extimus)], one 
listed as threatened [Coastal California Gnatcatcher (Polioptila 
californica californica)], and nine unlisted [Burrowing Owl (Athene 
cunicularia), Coastal Cactus Wren (Campylorhynchus brunneicapillus 
couesi), Cooper's Hawk (Accipiter cooperii), Grasshopper Sparrow 
(Ammodramus savannarum), Long-eared Owl (Asio otus), Tricolored 
Blackbird (Agelaius tricolor), White-tailed Kite (Elanus leucurus), 
Yellow-breasted Chat (Icteria virens), and Yellow Warbler (Dendroica 
petechia)] are also included as Covered Species. If the proposed Plan 
is approved and the permits issued, the take authorizations for listed 
covered animal species would be effective upon permit issuance. For 
currently unlisted covered animal species, the take authorizations 
would become effective concurrent with listing, should the species be 
listed under the ESA during the permit term. The take permits would 
authorize take incidental to the Covered Activities identified in the 
    Proposed Covered Activities include residential and commercial 
development and associated infrastructure on RMV, maintenance of 
existing RMV ranch facilities, and grazing on portions of the Habitat 
Reserve; SMWD projects both within and outside of RMV within the Plan 
area; and the County's expansion of the Prima Deshecha Landfill, and 
extention and improvements to Avenida La Pata. The Plan provides for 
the inclusion of additional individual land owners within Coto de Caza 
who choose to fulfill specific mitigation measures. Individual projects 
would typically require separate environmental review under CEQA, and 
in some cases, NEPA.
    As described in the Draft EIS/EIR, the Plan would provide for the 
creation of a Habitat Reserve encompassing approximately 20,868 acres 
of habitat permanently protected and managed to benefit the Covered 
Species, in addition to approximately 11,950 acres of existing County 
Wilderness Parkland, the 4,000-acre Audubon Starr Ranch, and 
approximately 7,000 acres of existing conservation elsewhere in the 
Southern Subregion of Orange County outside of the Cleveland National 
Forest that also provide habitat for the Covered Species. Orange County 
will manage an additional 531 acres for the benefit of Covered Species 
on the Prima Deshecha Landfill. As a major part of the Habitat Reserve, 
approximately 16,536 acres (73 percent) of RMV land would be preserved 
through a Phased Dedication Program linked to phased development on RMV 
lands. When completed, the Habitat Reserve will include large habitat 
blocks for Covered Species that provide for essential ecological 
processes and biological corridors and linkages to provide for the 
conservation of the proposed Covered Species.
    In order to comply with the requirements of the Federal ESA, 
California ESA, and the California NCCPA, the 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 
potential changed circumstances and remedial measures; identification 
of funding sources; and an assessment of alternatives to take of listed 
species. A monitoring and reporting plan would gauge the Plan's success 
based on achievement of biological goals and objectives and would 
ensure that conservation keeps pace with development. The Plan includes 
a management program, including adaptive management, which allows for 
changes in the conservation program if the biological species 
objectives are not met or new information becomes available to improve 
the efficacy of the Plan's conservation strategy.
    On July 14, 2006, the Service published a notice in the Federal 
Register (71 FR 40145) announcing receipt of an application for 
incidental take permits from the Applicants. The draft EIS/EIR analyzed 
the potential environmental impacts that may result from the Federal 
action of authorizing incidental take anticipated to occur with 
implementation of the Plan and identified various alternatives. We 
received a total of 21 comment letters on the draft EIS/EIR. In several 
cases, interested parties submitted separate but identical letters on 
both the EIS and EIR. A response to each comment received in all of 
these letters has been included in the final EIS/EIR.


    After an initial screening of proposed alternatives, the draft EIS/
EIR considered four alternatives in detail in addition to the preferred 
project described above (Alternative B-12) including: an expanded 
conservation alternative (B-8); an alternative formulated by Orange 
County during the County zoning process (B-10M); a ``no-take/no-
streambed alteration'' alternative (A-5); and a no-project alternative 
    Under Alternative B-8, approximately 19,130 acres (84 percent) of 
RMV land would be designated as permanent open space. Potential 
development would be located on about 3,680 acres (16 percent) of RMV 
lands. Acquisition and management of open space would be provided for 
through dedications and public and non-profit organization funding of 
acquisitions and management. A voluntary sale by RMV for purpose of 
open space acquisition likely would be required for substantial areas. 
County housing needs would be met to a far lesser extent than any of 
the other alternatives.
    Under Alternative B-10M, approximately 15,132 acres (66 percent) of 
RMV land would be designated as permanent open space. Potential 
development would be located on about 6,279 acres (27 percent, 
including orchards and the Planning Area 4 reservoir) of RMV land. This 
alternative would not require acquisition of reserve land on RMV. 
Compared with Alternative B-12, this alternative would result in more 
development in the San Mateo watershed.
    The ``no project'' and ``no take'' programmatic alternatives are 
expected to conserve less habitat than Alternative B-12 and in an 
unknown configuration through a project by project approach. Management 
for remaining open space in these alternatives is unspecified.

National Environmental Policy Act

    Proposed permit issuance triggers the need for compliance with 
NEPA. As stated above, because other Orange County and State-related 
actions are covered in the Plan, there is also a need for compliance 
with CEQA. Accordingly, a joint NEPA/CEQA document has been prepared. 
The Service is the lead agency responsible for compliance under NEPA, 
and Orange County is the Lead Agency with the responsibility for 
compliance with CEQA. As NEPA lead agency, the Service is providing 
notice of the availability of the Final EIS/EIR and is making available 
for public review the responses to comments on the Draft EIS/EIR.

Public Review

    The Service invites the public to review the Final Plan, Final EIS/
EIR, and Final Implementing Agreement

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during a 30-day waiting period [See DATES]. Any comments received, 
including names and addresses, will become part of the administrative 
record and may be made available to the public. Our practice is to make 
comments, including names, home addresses, home phone numbers, and 
email addresses of respondents, available for public review. Individual 
respondents may request that we withhold their names and/or homes 
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, 
documentable 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.
    The Service will evaluate the application, associated documents, 
and comments submitted to them to prepare a Record of Decision. Permit 
decisions 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 regulations for implementing NEPA, as amended (40 CFR 1506.6). 
We provide this notice in order to allow the public, agencies, and/or 
other organizations to review these documents.

    Dated: October 26, 2006.
Ken McDermond,
Deputy Manager, California/Nevada Operations Office, Sacramento, 
[FR Doc. E6-18971 Filed 11-9-06; 8:45 am]