[Federal Register Volume 77, Number 170 (Friday, August 31, 2012)]
[Pages 53221-53223]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21299]



Fish and Wildlife Service

[FWS-R8-ES-2012-N163 FF08E00000-FXES11120800000F2-112]

Santa Clara Valley Habitat Conservation Plan/Natural Community 
Conservation Plan, Environmental Impact Statement, and Implementing 
Agreement; California

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: The Fish and Wildlife Service (Service) announces the 
availability of the Final Environmental Impact Statement (EIS) on the 
Santa Clara Valley Habitat Conservation Plan and Natural Community 
Conservation Plan (Plan), along with the Implementing Agreement (IA), 
for review. The EIS was updated to address the comments received on the 
2010 Draft EIS. We are considering issuing an incidental take permit 
for 18 species in response to applications from the County of Santa 
Clara; Cities of San Jose, Gilroy, and Morgan Hill; Santa Clara Valley 
Transportation Authority, and Santa Clara Valley Water District 
(applicants). The applicants are currently in the process of creating a 
Joint Powers Authority (JPA) to implement the Plan. Following its 
formation, the Service anticipates that the applicants will submit an 
application to the Service to amend the section 10(a)(1)(B) incidental 
take permit to add the JPA.

DATES: Written comments must be received by 5 p.m. Pacific Time, 
October 1, 2012.

ADDRESSES: Obtaining Documents: You may download copies of the Final 
EIS, Plan, and IA on the Internet at http://www.fws.gov/sacramento. 
Alternatively, you may use one of the methods below

[[Page 53222]]

to request hard copies or a CD-ROM of the documents.
    Submitting Comments: You may submit comments or requests for copies 
or more information by one of the following methods.
     U.S. Mail: Cori Mustin, Senior Fish and Wildlife 
Biologist, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-
2605, Sacramento, CA 95825.
     In-Person Drop-off, Viewing, or Pickup: Call 916-414-6600 
to make an appointment during regular business hours at the above 
     Fax: Cori Mustin, Senior Fish and Wildlife Biologist, 916-
414-6713, Attn.: Santa Clara Valley Plan/EIS Comments.
    Hard bound copies of the Final EIS, Plan, and IA are available for 
viewing at the following locations:
    1. Almaden Branch Library, 6445 Camden Avenue, San Jose, CA 95120.
    2. Dr. Martin Luther King, Jr. Library, 150 E San Fernando Street, 
San Jose, CA 95112.
    3. Gilroy Library, 7387 Rosanna Street, Gilroy, CA 95020.
    4. Morgan Hill Library, 660 West Main Avenue, Morgan Hill, CA 
    5. Central Park Library, 2635 Homestead Road, Santa Clara, CA 
    6. City of Palo Alto Main Library, 1233 Newell Road, Palo Alto, CA 
    7. Fremont Main Library, 2400 Stevenson Boulevard, Fremont, CA 

Conservation Planning; or Eric Tattersall, Deputy Assistant Field 
Supervisor, Conservation Planning and Recovery; at 916-414-6600.



    Section 9 of the Endangered Species Act (Act; 16 U.S.C. 1531 et 
seq.) and Federal regulations prohibit the ``take'' of fish and 
wildlife species listed as endangered or threatened (16 U.S.C. 
1538(a)(1)(B)). 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 (19)). We have further defined 
``harm'' to mean 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, we 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 activities). Regulations governing incidental take permits for 
threatened and endangered species are found in 50 CFR 17.32 and 17.22, 
respectively. If we issue a permit, the applicants would receive 
assurances for all species covered by the permit in accordance with our 
``No Surprises'' regulations at 50 CFR 17.22(b)(5) and 17.32(b)(5) for 
all species covered by the permit.
    Take of listed plant species is not prohibited under the Act and 
cannot be authorized under a section 10 permit. However, the applicants 
propose to include 9 plant species in the Plan to extend the Plan's 
conservation benefits to these species. The applicants would receive 
assurances under the ``No Surprises'' regulations found in 50 CFR 
17.22(b)(5), 17.32(b)(5), and 222.307(g) for all proposed covered 
species in the Plan.
    The EIS analyzes the impacts of the proposed implementation of the 
Plan by the applicants. The applicants are seeking a permit for the 
incidental take of 18 covered species, including 9 animal species (2 
federally endangered, 3 federally threatened, and 4 unlisted) and 9 
plant species (4 federally endangered and 5 unlisted). The permit would 
provide take authorization for all animal species and assurances for 
all plant species identified by the Plan as covered species. Take 
authorized for listed covered animal species would be effective upon 
permit issuance and adoption of all applicable local ordinances. Take 
authorization for currently unlisted covered animal species would 
become effective concurrent with listing, should the species be listed 
under the Act during the permit term as long as the Plan is being 
properly implemented.
    The proposed permit would include the following five federally 
listed animal species: The threatened Bay checkerspot butterfly 
(Euphydryas editha bayensis), threatened California tiger salamander 
(Central California Distinct Population Segment) (Ambystoma 
californiense), threatened California red-legged frog (Rana draytonii), 
endangered least Bell's vireo (Vireo bellii pusillus), and endangered 
San Joaquin kit fox (Vulpes macrotis mutica). The proposed permit would 
include assurances for the following four federally listed plant 
species: The endangered Tiburon Indian paintbrush (Castilleja affinis 
ssp. neglecta), endangered coyote ceanothus (Ceanothus ferrisae), 
endangered Santa Clara Valley dudleya (Dudleya setchellii), and 
endangered Metcalf Canyon jewelflower (Streptanthus albidus ssp. 
    The unlisted species proposed for coverage under the Plan are the 
foothill yellow-legged frog (Rana boylii), western pond turtle (Clemmys 
marmorata), western burrowing owl (Athene cunicularia hypugaea), 
tricolored blackbird (Agelaius tricolor), Mount Hamilton thistle 
(Cirsium fontinale var. campylon), fragrant fritillary (Fritillaria 
liliacea), Loma Prieta hoita (Hoita strobilina), smooth lessingia 
(Lessingia micradenia var. glabrata), and most beautiful jewelflower 
(Streptanthus albidus ssp. peramoenus).
    Proposed covered activities include the following seven categories 
of covered activities: urban development, instream capital projects, 
instream operation and maintenance activities, rural capital projects, 
rural operation and maintenance activities, rural development, and 
conservation strategy implementation. The proposed term of the permit 
is 50 years.
    The proposed 508,669-acre permit area is the area where incidental 
take of covered species resulting from covered activities could occur 
and includes the Pajaro River and all or a portion of the Llagas, Uvas, 
Pescadero, and Pacheco subwatersheds and the Coyote Creek watershed 
within Santa Clara County. A large portion of the Guadalupe watershed 
is also contained within the permit area, as well as small areas 
outside of each of these watersheds.
    Contained within the 508,669-acre permit area is the 48,464-acre 
expanded study area and permit area for burrowing owl conservation, 
which includes the northern portion of Santa Clara County and a small 
portion each of both San Mateo and Alameda Counties (see Figure 1-2 of 
the Plan). Incidental take in the expanded study area and permit area 
for burrowing owl conservation will be limited to the implementation of 
the Plan's western burrowing owl conservation strategy. Incidental take 
of the western burrowing owl in this portion of the permit area would 
only be provided to the applicants and those under their jurisdiction 
and only be provided for the western burrowing owl (not the remaining 
17 species covered under the Plan).
    Covered activities would result in the permanent loss of up to 
17,975 acres in the permit area. Habitat models were developed for most 
covered species and used in the impacts analysis. Land cover surrogates 
were used to identify maximum allowable impacts to species for which 
habitat models could not be developed. The Plan also describes 
conditions on covered activities to avoid or minimize take of covered 
    The proposed conservation strategy includes establishing a reserve 

[[Page 53223]]

that would be composed of an estimated 46,496 to 46,920 acres that 
would be permanently preserved, monitored, and managed.

National Environmental Policy Act Compliance

    Our proposal to issue an incidental take permit is a Federal action 
that triggers the need for compliance with the National Environmental 
Policy Act (NEPA; 42 U.S.C. 4321 et seq.). The Service prepared the 
EIS, which is the Federal portion of the Environmental Impact Report/
Environmental Impact Statement (EIR/EIS), to analyze the impacts of 
issuing an incidental take permit based on the Plan. Santa Clara County 
facilitated the preparation of the EIR portion of the Final EIR/EIS, in 
compliance with the California Environmental Quality Act (CEQA), but 
all applicants share the CEQA Lead Agency role. The California 
Department of Fish and Game is a CEQA Trustee and Responsible Agency. 
The Final EIR/EIS was developed to inform the public of the proposed 
action, alternatives, and associated impacts; address public comments 
received during the public comment period for the Draft EIR/EIS; and 
disclose irreversible commitments of resources.
    The Final EIR/EIS evaluates the impacts of the proposed action 
described above (i.e., issuance of the permit and implementation of the 
Final Plan), as well as the No Action Alternative and Alternative A, 
which are described below.

No Action Alternative

    Under the No Action Alternative, the Service would not issue an 
incidental take permit to the applicants, and the Plan would not be 
implemented. Under this alternative, projects that may adversely affect 
federally listed species would require project-level consultation with 
the Service pursuant to section 7 or section 10 of the Act. This 
project-level approach would preclude landscape-level conservation 
planning and would not streamline the current permitting process.

Alternative A (Reduced Permit Term)

    Under Alternative A, the Service would issue an incidental take 
permit, and the applicants would implement a habitat conservation plan 
and natural community conservation plan that is similar to the Plan 
described in the proposed action; however, the proposed permit term 
would be reduced to 30 years. The extent of covered activities and the 
conservation strategy would be subsequently reduced relative to the 
proposed action.
    The Final EIR/EIS includes all comments received on the Draft EIR/
EIS and our responses to those comments. Following a 30-day review 
period, we will complete a Record of Decision that announces our 
decision on the action that will be implemented and discusses all 
factors leading to the decision.

Public Involvement

    We published a notice of intent (NOI) to prepare an EIS for this 
project in the Federal Register on September 6, 2007 (72 FR 51247). The 
NOI announced a public scoping period during which time the public was 
invited to provide written comments and attend a public scoping meeting 
held on September 26, 2007, in Morgan Hill, California. On December 17, 
2010, we published a notice of availability of the Draft Plan, EIS, and 
IA in the Federal Register (75 FR 79013). Two public meetings were 
held, the first on February 9, 2011, in Morgan Hill, California, and 
the second on February 15, 2011, in Palo Alto, California. The Draft 
documents were available for a 120-day public comment period, which 
concluded on April 18, 2011.

Public Review

    Copies of the Final EIR/EIS, Plan, and IA are available for review 
(see ADDRESSES). Any comments we receive will become part of the 
administrative record and may be available to the public. If you wish 
to comment on the Final EIS, Plan, or IA, you may submit your comments 
to the address listed in ADDRESSES. Before including your address, 
phone number, email 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 may 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 will evaluate the applications, associated documents, and 
comments submitted to determine whether the applications meet the 
requirements of section 10(a) of the Act. A permit decision will be 
made no sooner than 30 days after the publication of the Environmental 
Protection Agency's Final EIS notice in the Federal Register and 
completion of the Record of Decision.


    This notice is provided pursuant to section 10(a) of the Act and 
pursuant to implementing regulations for NEPA (40 CFR 1506.6).

    Dated: August 21, 2012.
Margaret Kolar,
Acting Deputy Regional Director, Pacific Southwest Region, Sacramento, 
[FR Doc. 2012-21299 Filed 8-30-12; 8:45 am]