[Federal Register: July 15, 2010 (Volume 75, Number 135)]
[Page 41229-41231]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R8-ES-2010-N139; 1112-0000-81440-F2

Endangered and Threatened Wildlife and Plants; Permit, San 
Bernardino County, CA

AGENCY: U.S. Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from CJR General Partnership (applicant) for an 
incidental take permit under the Endangered Species Act of 1973, as 
amended (Act). We are considering issuing a permit that would authorize 
the applicant's take of the federally threatened desert tortoise 
(Gopherus agassizii) and State threatened Mohave ground squirrel 
(Xerospermophilus mohavensis) incidental to otherwise lawful activities 
that would result in the permanent loss of 120 acres of habitat for the 
species near Oro Grande in San Bernardino County California. We invite 
comments from the public on the application, which includes the AgCon 
Habitat Conservation Plan (HCP) that fully describes the proposed 
project and measures the applicant will undertake to minimize and 
mitigate anticipated take of the species. We also invite comments on 
our preliminary determination that the HCP qualifies as a ``low-
effect'' plan, which is eligible for a categorical exclusion under the 
National Environmental Policy Act (NEPA) of 1969, as amended. We 
explain the basis for this determination in our draft Environmental 
Action Statement and associated Low-Effect Screening Form, both of 
which are also available for review.

[[Page 41230]]

DATES: To ensure consideration, please send your written comments by 
August 16, 2010.

ADDRESSES: You may download a copy of the permit application, HCP, and 
related documents on the Internet at http://www.fws.gov/ventura/, or 
you may request documents by U.S. mail or phone (see below). Please 
address written comments to Diane K. Noda, Field Supervisor, Ventura 
Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola 
Road, Suite B, Ventura, CA 93003. You may alternatively send comments 
by facsimile to (805) 644-3958.

FOR FURTHER INFORMATION CONTACT: Jen Lechuga, HCP Coordinator, at the 
Ventura address above or by telephone at (805) 644-1766, extension 224.



    The desert tortoise, Mojave population, was listed as threatened on 
April 2, 1990 (55 FR 12178). Section 9 of the Act (16 U.S.C. 1531 et 
seq.) and our implementing Federal regulations in the Code of Federal 
Regulations (CFR) at 50 CFR 17 prohibit the ``take'' of fish or 
wildlife species listed as endangered or threatened. Take of listed 
fish or wildlife is defined under the Actas ``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). However, under limited 
circumstances, we 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 threatened and endangered species are at 50 CFR 17.32 and 
17.22, respectively.
    The Mohave ground squirrel is not a species listed under the Act. 
However, it is a State threatened species under the California 
Endangered Species Act. By including the Mohave ground squirrel in the 
HCP, take of this species would be authorized under the permit should 
this species become listed under the Act.
    The Act's take prohibitions do not apply to federally listed plants 
on private lands unless such take would violate State law. In addition 
to meeting other criteria, the HCP's proposed actions must not 
jeopardize the existence of federally listed fish, wildlife, or plants.
    The applicant proposes to expandits existing 120-acre Oro Grande 
sand and gravel mine pitto the north by 120 acres on parcel APN 0470-
052-02 located north of Bryman Road and east of National Trails 
Highway, approximately 5 miles south of Helendale, San Bernardino 
County, California. The parcel contains Mojave creosotebush scrub and 
sandy loam soils. Desert tortoise surveys were conducted on the 
property and two individuals were found. Surveys for Mohave ground 
squirrels were not conducted. Their presence was assumed as the species 
has been recorded nearby and the property is within the range of and 
provides suitable habitat for the Mohave ground squirrel.
    The proposed project would result in permanent impacts to 120 acres 
of habitat for the desert tortoise and Mohave ground squirrel. The 
applicant proposes to implement the following measures to minimize and 
mitigate for the loss of desert tortoise and Mohave ground squirrel 
habitat within the permit area: (1) Applicant will purchase 120 acres 
of desert tortoise and Mohave ground squirrel habitat in the Superior-
Cronese Critical Habitat Unit and Desert Wildlife Management Area for 
the desert tortoise which will be managed in perpetuity by the 
California Department of Fish and Game or a third party for the 
conservation of the desert tortoise and Mohave ground squirrel; (2) a 
qualified biologist will oversee site preparation including vegetation 
and topsoil removal and fence construction, and provide worker training 
on the desert tortoise and Mohave ground squirrel and requirements of 
the HCP; (3) all desert tortoises captured during clearance surveys of 
the mine pit expansion site will be moved to adjacent creosotebush 
scrub habitat managed by the Bureau of Land Management (BLM); and (4) 
permanent desert tortoise exclusion fencing will be installed to 
demarcate the impact area from the adjacent areas, including the BLM-
managed lands.
    In the proposed HCP, the applicant considersfive alternatives to 
the taking of the desert tortoise and Mohave ground squirrel. The No 
Action alternative would maintain current conditions, the project would 
not be implemented, there would be no impacts to the desert tortoise or 
Mohave ground squirrel, and an incidental take permit application would 
not be submitted to the Service. The other alternatives include 
expanding mining operations at another existing mine, developing a new 
mine at a new site, reducing the size of the proposed mine expansion, 
and changing the duration or direction of the proposed mine expansion.
    We are requesting comments on our preliminary determination that 
the applicant's proposal will have a minor or neglible effect on the 
species covered in the plan, and that the plan qualifies as a ``low-
effect'' HCP as defined by our Habitat Conservation Planning Handbook 
(November 1996). We base our determination that the HCP qualifies as a 
low-effect HCP on the following three criteria: (1) Implementation of 
the applicant's project description in the HCP would result in minor or 
negligible effects on federally listed, proposed, and candidate species 
and their habitats; (2) implementation of the HCP would result in minor 
or negligible effects on other environmental values or resources; and 
(3) impacts of the HCP, considered together with the impacts of other 
past, present, and reasonably foreseeable similarly situated projects, 
would not result, over time, in cumulative effects to the environmental 
values or resources that would be considered significant. As more fully 
explained in our draft Environmental Action Statement and associated 
Low-Effect Screening Form, the applicant's proposed HCP qualifies as a 
``low-effect'' HCP for the following reasons:
    (1) Approval of the HCP would result in minor or negligible effects 
on the desert tortoise, Mohave ground squirrel, and their habitats. We 
do not anticipate significant direct, indirect, or cumulative effects 
to the desert tortoise resulting from the proposed project;
    (2) Approval of the HCP would not have adverse effects on unique 
geographic, historic, or cultural sites, or involve unique or unknown 
environmental risks;
    (3) Approval of the HCP would not result in any cumulative or 
growth-inducing impacts and would not result in significant adverse 
effects on public health or safety;
    (4) The project does not require compliance with Executive Order 
11988 (Floodplain Management), Executive Order 11990 (Protection of 
Wetlands), or the Fish and Wildlife Coordination Act, nor does it 
threaten to violate a Federal, State, local, or tribal law or 
requirement imposed for the protection of the environment; and
    (5) Approval of the HCP would not establish a precedent for future 
actions or represent a decision in principle about future actions with 
potentially significant environmental effects.
    We, therefore, have made the preliminary determination that the 
approval of the HCP and incidental take permit application qualifies 
for a categorical exclusion under the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), as provided by the Department of the Interior 
Manual (516 DM 2 Appendix 2 and 516 DM 8). Based on our review of 
public comments that we receive in response to this notice, we

[[Page 41231]]

may revise this preliminary determination.

Next Steps

    We will evaluate the HCP and comments we receive to determine 
whether the permit application meets the requirements of section 
10(a)(1)(B) of the Act (16 U.S.C. 1531 et seq.) and implementing 
regulations (50 CFR 17.32). If we determine that the application meets 
these requirements, we will issue the permit for incidental take of the 
desert tortoise and Mohave ground squirrel. We will also evaluate 
whether issuance of a section 10(a)(1)(B) permit would comply with 
section 7 of the Act by conducting an intra-Service section 7 
consultation. We will use the results of this consultation, in 
combination with the above findings, in our final analysis to determine 
whether or not to issue a permit. If the requirements are met, we will 
issue the permit to the applicant.

Public Comments

    If you wish to comment on the permit application, HCP, and 
associated documents, you may submit comments by any one of the methods 

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.


    We provide this notice under section 10 of the Act (U.S.C. 1531 et 
seq.) and NEPA regulations (40 CFR 1506.6).

    Dated: July 9, 2010.
Diane K. Noda,
Field Supervisor, Ventura Fish and Wildlife Office, Ventura, 
[FR Doc. 2010-17270 Filed 7-14-10; 8:45 am]