[Federal Register: March 24, 2000 (Volume 65, Number 58)]
[Page 15914-15916]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of an Environmental Assessment and Receipt of an 
Application for an Incidental Take Permit for the Coastal California 
Gnatcatcher Associated With Residential Development in the City of 
Fullerton, County of Orange, California

AGENCY: Fish and Wildlife Service, DOI.

ACTION: Notice of availability.


SUMMARY: Van Daele Development Corporation of Riverside, California 
(Van Daele), has applied to the Fish and Wildlife Service for an 
incidental take permit pursuant to section 10(a)(1)(B) of the 
Endangered Species Act, 1973, as amended. Van Daele seeks a permit for 
a period of 3 years that would authorize incidental take of a bird, the 
threatened coastal California gnatcatcher (Polioptila californica 
californica), associated with single-family residential development and 
occupancy of 35 acres of habitat within the City of Fullerton, County 
of Orange, California. The permit application includes a Habitat 
Conservation Plan and an Implementation Agreement, both of which are 
available for public review and comment. We also request

[[Page 15915]]

comments on our Environmental Assessment for the proposed issuance of 
the incidental take permit. We provide this notice pursuant to section 
10(a) of the Endangered Species Act and National Environmental Policy 
Act regulations (40 CFR 1506.6). All comments on the Environmental 
Assessment and permit application will become part of the 
administrative record and will be available to the public.

DATES: Written comments should be received on or before April 24, 2000.

ADDRESSES: You should address written comments to Mr. Ken Berg, Field 
Supervisor, Fish and Wildlife Service, 2730 Loker Avenue West, 
Carlsbad, California 92008. You also may send comments by facsimile to 
telephone (760) 431-9624.

FOR FURTHER INFORMATION CONTACT: Ms. Karen Evans, Division Chief, Los 
Angeles and Orange Counties, at the above address or call (760) 431-


Availability of Documents

    You may obtain copies of the documents for review by calling our 
Carlsbad Fish and Wildlife Office at the above referenced telephone 
number. You also may make an appointment to review the documents during 
normal business hours at the above address.


    Section 9 of the Endangered Species Act and Service regulations 
prohibit the ``take'' of threatened or endangered wildlife. Take means 
to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 
collect listed animal species, or attempt to engage in such conduct (16 
USC 1538). Harm may include significant habitat modification that 
actually kills or injures wildlife by significantly impairing essential 
behavioral patterns, including breeding, feeding, and sheltering [50 
CFR 17.3(c)]. The Service, however, may issue permits to take 
endangered and/or threatened wildlife incidental to, and not the 
purpose of, otherwise lawful activities. Regulations governing permits 
for endangered and threatened species are found at 50 CFR 17.22 and 
    We propose to issue a permit to Van Daele authorizing take of the 
threatened coastal California gnatcatcher incidental to otherwise 
lawful construction, development, and occupancy of a residential 
subdivision. This project would directly impact the gnatcatcher by 
removing 4.65 acres of suitable habitat on the 35-acre parcel. The 
permit application includes a Habitat Conservation Plan and an 
Implementation Agreement that define the responsibilities of all 
parties under the Plan. Van Daele's Habitat Conservation Plan describes 
alternatives to the action and includes measures to minimize and 
mitigate impacts to the gnatcatcher.
    To minimize impacts, Van Daele proposes in its Habitat Conservation 
Plan to flush coastal California gnatcatchers prior to grading 
operations and to monitor the site during clearing and grubbing 
operations (brushing). To mitigate for the permanent loss of occupied 
habitat due to the proposed subdivision development, Van Daele proposes 
to permanently protect coastal sage scrub habitat off site that has 
high long-term conservation value for the coastal California 
gnatcatcher. Van Daele has agreed with the Service to mitigate for the 
entire habitat area that supports coastal California gnatcatchers on 
site, which includes not only the coastal sage scrub but also the 
grassland ecotone (transition zone between habitat types) and the 
mulefat scrub on the property, for a combined total of 4.65 acres.
    The mitigation plan contains four options that include acquisition 
or restoration, preservation, and management of high-quality habitat to 
support coastal California gnatcatchers (in order of priority);
    1. Contribute funds to the purchase of lands within the Coal Canyon 
wildlife corridor.
    2. Purchase coastal California gnatcatcher occupied habitat 
adjacent to, and for incorporation into, Chino Hills State Park.
    3. Purchase land within the conditional sale area of the previously 
approved Shell Oil/Metropolitan Water District Habitat Conservation 
Plan, for incorporation into the Chino Hills State Park.
    4. Restore 4.65 acres of a lemon orchard to coastal sage scrub 
vegetation within Chino Hills State Park. This lemon orchard is 
adjacent to occupied coastal California gnatcatcher habitat.
    Based on lands valued at $37,000 per acre (as determined from the 
cost of land in the Shell Oil/Metropolitan Water District conditional 
sale area), Van Daele proposes to contribute a minimum of $172,050 in 
fulfillment of this Habitat Conservation Plan. The Service expects that 
this amount would be adequate to acquire between 3 and 4.65 acres of 
habitat, or to restore 4.65 ares of habitat. Van Daele reserves the 
right to propose other possible options at a later date. These options 
may be selected if they are acceptable to the Service and do not 
diminish the level or means of mitigation. We anticipate these options 
to be the acquisition of lands in another established reserve, should 
one become available prior to the issuance of Van Daele's grading 
permit and the use of the funds.
    In our Environmental Assessment, we considered Van Daele's proposed 
project (Proposed Action Alternative) and three scenarios under the No 
Action Alternative. Under the Proposed Action Alternative, we would 
issue a permit under section 10(a)(1)(B) of the Endangered Species Act 
to Van Daele, authorizing incidental take of the threatened coastal 
California gnatcatcher during development and occupancy of the single-
family residence tract on the 35-acre proposed project site. The 
project site was previously used for oil and gas operations. Prior to 
development, Van Daele would ensure that the site is fully remediated 
for hazardous wastes that might be present as a result of the 
approximately 19 wells that have operated at the site. The remediation 
would be fully compliant with requirements of all applicable State, 
County, and local agencies and regulations. Three oil wells would 
remain in operation concurrently with and adjacent to the proposed 
    Implementation of the proposed project would require several 
discretionary actions by the City of Fullerton including a Specific 
Plan amendment, zone change, and development agreement. Development of 
the proposed project would result in the conversion of approximately 35 
acres of land from oilfield and gas operations to residential uses. 
Implementation would also require the marginal extension of Maple 
Avenue, which currently terminates at Rolling Hills Park, into the 
western portion of the project site.
    Under the no Action Alternative, the Service would not issue an 
incidental take permit. Van Daele would either proceed with a reduced 
residential development, select an alternative site, or abandon the 
    Under this no take scenario, Van Daele could proceed with a 
residential development project within the same 35-acre parcel but with 
a reduced construction area configuration, so as to avoid physically 
disturbing the on-site coastal California gnatcatcher habitat. The 
residential development would be reduced by approximately 5 residences 
compared to the proposed project.
    Under a second no take scenario, Van Daele could select a different 
site for a residential development project that does not support any 
listed species. Therefore, the project would not result in the 
incidental take of a listed species

[[Page 15916]]

and issuance of an incidental take permit would not be required.
    Under a third no take scenario, Van Daele could abandon the 
project. The site would remain relatively vacant with the exception of 
the continued operation of up to 19 oil wells. Under this scenario, 
there is no assurance that site remediation and abandonment of the 
approximately 16 wells formerly in use at the site would occur in a 
timely fashion. Hazardous residuals from prior site use could remain 
indefinitely in the subsurface soils.
    We provide this notice pursuant to section 10(a) of the Endangered 
Species Act and Service regulations for implementing the National 
Environmental Policy Act of 1969 (40 CFR 1506.6). We will evaluate the 
permit application, Habitat Conservation Plan, Implementation 
Agreement, Environmental Assessment, associated documents, and comments 
submitted thereon to determine whether the application meets the 
requirements of section 10(a) of the Endangered Species Act. If we 
determine that the requirements are met, we will issue a permit for the 
incidental take of the coastal California gnatcatcher. We will make a 
decision on permit issuance no sooner than 30 days from the date of 
this notice.

    Dated: March 20, 2000.
Elizabeth H. Stevens,
Deputy Manager, California/Nevada Operations Office, Fish and Wildlife 
Service, Sacramento, California.
[FR Doc. 00-7304 Filed 3-23-00; 8:45 am]