[Federal Register: April 17, 2009 (Volume 74, Number 73)]
[Page 17880-17881]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R8-ES-2009-N0060]; [1112-0000-81420-F2]

Hossain Ahmadi Low-Effect Habitat Conservation Plan, City of San 
Jose, Santa Clara County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability: proposed low-effect habitat 
conservation plan; request for comment.


SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Hossain Ahmadi (applicant) for a 3-year incidental 
take permit for five species under the Endangered Species Act of 1973, 
as amended (Act). The application addresses the potential for ``take'' 
of three listed animals, one listed plant, and one non-listed plant. 
The applicant would implement a conservation program to minimize and 
mitigate the project activities, as described in the applicant's low-
effect habitat conservation plan (plan). We request comments on the 
applicant's application and plan, and the preliminary determination 
that the plan qualifies as a ``low-effect'' habitat conservation plan, 
eligible for a Categorical Exclusion under the National Environmental 
Policy Act of 1969, as amended (NEPA). We discuss our basis for this 
determination in our environmental action statement (EAS), also 
available for public review.

DATES: We must receive written comments on or before May 18, 2009.

ADDRESSES: Please address written comments to Mike Thomas, Conservation 
Planning Branch, U. S. Fish and Wildlife Service, Sacramento Fish and 
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825. 
Alternatively, you may send comments by facsimile to (916) 414-6713.

FOR FURTHER INFORMATION CONTACT: Mike Thomas, or Eric Tattersall, 
Division Chief, Conservation Planning Branch, at the address shown 
above or at 916-414-6600 (telephone).


Availability of Documents

    You may obtain copies of the permit application, plan, and EAS from 
the individuals in FOR FURTHER INFORMATION CONTACT. Copies of these 
documents are also available for public inspection, by appointment, 
during regular business hours, at the Sacramento Fish and Wildlife 
Office (see ADDRESSES).

Public Availability of Comments

    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 can 
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.

Background Information

    Section 9 of the Act (16 U.S.C. 1531 et seq.) and its implementing 
Federal regulations prohibit the ``take'' of fish or wildlife species 
listed as endangered or threatened. ``Take'' is defined under the Act 
to include the following activities: To harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect listed animal species, or 
to attempt to engage in such conduct. However, under section 
10(a)(1)(B) of the Act, we may issue permits to authorize incidental 
take of listed species. ``Incidental take'' is defined by the Act as 
take that is incidental to, and not the purpose of, carrying out an 
otherwise lawful activity. Regulations governing incidental take 
permits for endangered and threatened species, respectively, are in the 
Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.
    Although take of listed plant species is not prohibited under the 
Act, 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 in the incidental take permit would receive 
assurances under our ``No Surprises'' regulations (50 CFR 17.22(b)(5) 
and 17.32(b)(5)).
    The applicant seeks an incident take permit for covered activities 
within 9.2 acres (ac) (3.72 hectares (ha)) of grassland the applicant 
owns in Santa Clara County, California. The applicant is requesting 
permits for take of three animal species federally listed as 
threatened: Bay checkerspot butterfly (Euphydryas editha bayensis), 
California red-legged frog (Rana aurora draytonii),

[[Page 17881]]

and California tiger salamander (Ambystoma californiense); one plant 
species federally listed as endangered: Santa Clara Valley dudleya 
(Dudleya setchellii). The plan also includes one non-listed plant 
species, the most beautiful jewelflower (Streptanthus albidus ssp. 
peramoenus). The plan does not include any nonlisted animal species. 
Collectively, these species are referred to as ``covered species'' in 
the plan.
    Covered activities include the following: Grading and ground 
leveling; vegetation removal and planting; soil compaction; building 
construction; and use of heavy equipment (including, but not limited 
to, bulldozers, cement trucks, water trucks, and backhoes); erosion 
control structures (such as silt fencing and barriers); dust control 
(such as watering surface soils); construction of driveways; trenching; 
installation of utilities and irrigation systems;, and associated 
    The applicant proposes to avoid, minimize, and mitigate the effects 
to the covered species associated with the covered activities by fully 
implementing the plan. Minimization measures will include, but are not 
limited to, an employee education program; biological monitoring during 
construction and earthmoving; a storm water, erosion, and dust control 
plan; and salvage of individual Santa Clara Valley dudleya prior to 
construction. General minimization measures will include: Limiting 
staging and work areas to the project site only; regular removal of all 
foods and food-related trash every three days; prohibiting pets from 
the project site during construction; restricting ground disturbance to 
the period of July 1 through November 30 (generally the dry season), 
unless we authorize otherwise; and maintenance of all equipment to 
avoid fluid leaks.


    Our proposed action is approving the applicant's plan and issuance 
of an incidental take permit for the applicant's covered activities. As 
required by the Act, the applicant's plan considers alternatives to the 
take under the proposed action. The plan considers the environmental 
consequences of one alternative to the proposed action, the No Action 
Alternative. Under the No Action Alternative, we would not issue a 
permit; the applicant would not build the proposed single-family 
residence; the project area would continue to experience illegal off-
road vehicle use, illegal trash dumping, and trespassing; and no take 
would occur for the construction of the residence and its associated 
    Under the proposed action alternative, we would issue an incidental 
take permit for the applicant's proposed project, which includes the 
activities described above. The proposed action alternative would 
result in permanent loss of 1.33 ac (0.54 ha) of grassland habitat for 
the Bay checkerspot butterfly, California tiger salamander, California 
red-legged frog, Santa Clara Valley dudleya, and most beautiful 
jewelflower. To mitigate for these effects, the applicant proposes to 
protect, enhance, and manage in perpetuity 6.8 ac (2.76 ha) of on-site 

National Environmental Policy Act

    As described in our EAS, we have made the preliminary determination 
that approval of the proposed plan and issuance of the permit would 
qualify as a categorical exclusion under NEPA (42 U.S.C. 4321 et seq.), 
as provided by Federal regulations (40 CFR 1500, 5(k), 1507.3(b)(2), 
1508.4) and the Department of the Interior Manual (516 DM 2 and 516 DM 
8). Our EAS found that the proposed plan qualifies as a ``low-effect'' 
habitat conservation plan, as defined by our Habitat Conservation 
Planning Handbook (November 1996). Determination of low-effect habitat 
conservation plans is based on the following three criteria: (1) 
Implementation of the proposed plan would result in minor or negligible 
effects on federally listed, proposed, and candidate species and their 
habitats; (2) implementation of the proposed plan would result in minor 
or negligible effects on other environmental values or resources; and 
(3) impacts of the 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 that would be considered significant. Based upon 
the preliminary determinations in the EAS, we do not intend to prepare 
further NEPA documentation. We will consider public comments when 
making the final determination on whether to prepare an additional NEPA 
document on the proposed action.

Public Review

    We provide this notice pursuant to section 10(c) of the Act and the 
NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 
1506.6). We will evaluate the permit application, including the plan, 
and comments we receive to determine whether the application meets the 
requirements of section 10(a) of the Act. If the requirements are met, 
we will issue a permit to the applicant for the incidental take of the 
Bay checkerspot butterfly, California tiger salamander, California red-
legged frog, Santa Clara Valley dudleya, and most beautiful jewelflower 
from the implementation of the covered activities described in the 
plan, or from mitigation conducted as part of this plan. We will make 
the final permit decision no sooner than 30 days after the date of this 

    Dated: April 13, 2009.
Jan Knight,
Acting Field Supervisor, Sacramento Fish and Wildlife Office, 
Sacramento, California.
[FR Doc. E9-8816 Filed 4-16-09; 8:45 am]