[Federal Register: January 11, 2002 (Volume 67, Number 8)]
[Page 1496-1497]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Mission View Estates Habitat Conservation Plan and Environmental 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice.


SUMMARY: Kennedy Development of California, LLC has applied to Fish and 
Wildlife Service (Service) for an incidental take permit pursuant to 
section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended 
(Act). The proposed 10-year permit would authorize incidental take of 
the federally threatened coastal California gnatcatcher (Polioptila 
californica californica) in connection with the construction of the 65-
unit Mission View Estates residential development on 28.9 acres in the 
City of Oceanside, San Diego County, California. The permit application 
includes a Habitat Conservation Plan (HCP) and an Implementation 
Agreement that serves as a legal contract. The Service has prepared an 
Environmental Assessment for our proposed action of issuing a permit to 
Kennedy Development. These documents are available for public review 
and comment.

DATES: We must receive your written comments on or before March 12, 

ADDRESSES: Send comments to Mr. Jim Bartel, Field Supervisor, U.S. Fish 
and Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 
92008. You also may submit comments by facsimile to (760) 431-9618.

FOR FURTHER INFORMATION CONTACT: Ms. Janet Stuckrath, Fish and Wildlife 
Biologist, at the above address; telephone (760) 431-9440.


Availability of Documents

    You may request copies of the documents by contacting the office 
above. You may view the documents, by appointment, during normal 
business hours (8 a.m. to 5 p.m.), Monday through Friday at the 
Carlsbad Fish and Wildlife Office (see ADDRESSES). Copies are also 
available for viewing at two public libraries: Civic Center Library, 
330 North Coast Highway, Oceanside, California; or Mission Branch 
Library, 3861-B Mission Avenue, Oceanside, California.


    Section 9 of the Act and Federal regulation prohibit the ``take'' 
of animal species listed as endangered or threatened. That is, no one 
may harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or 
collect listed animal species, or attempt to engage in such conduct (16 
U.S.C. 1538). ``Harm'' is defined by regulation to include significant 
habitat modification or degradation that actually kills or injures 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering (50 CFR 17.3). Under certain 
circumstances, the Service may issue permits to authorize 
``incidental'' take of listed animal species (defined by the Act as 
take that is incidental to, and not the purpose of, the carrying out of 
an otherwise lawful activity). Regulations governing permits for 
threatened and endangered species, respectively, are at 50 CFR 17.32 
and 17.22.
    Kennedy Development has submitted an application for a 10-year 
incidental take permit to the Service, proposing the take of coastal 
California gnatcatchers during the construction of a residential 
development on the 28.9-acre site. One threatened plant, thread-leaved 
brodiaea (Brodiaea filifolia), would be named on the permit. The taking 
prohibitions of the Act do not apply to listed plants on private land 
unless their destruction on private land is in violation of State law. 
Nevertheless, Kennedy Development has considered the plant in its HCP 
and requests a permit for this species to the extent that State law 
    The proposed project is located in the City of Oceanside south of 
Mission Avenue, at the terminus of Mission Gate Drive. The proposed 
project consists of: (1) The construction of 65 single-family homes; 
(2) extension of Mission Gate Drive, and (3) implementation of the HCP 
over a 10-year period. The HCP would establish and provide for 
management of a 7.88-acre conservation area on the project site, 
containing 4.24 acres of coastal sage scrub habitat occupied by 2 pairs 
of gnatcatchers. In addition, the applicant will purchase 11.82 acres 
of an off-site habitat parcel within the City of Oceanside's ``Wildlife 
Corridor Planning Zone'' as described in the draft ``Oceanside Subarea 
Habitat Conservation Plan/Natural Communities Conservation Plan'' 
(Ogden Environmental and Conservation Biology Institute, 2000) and 3.94 
acres of off-site habitat within an approved conservation bank, for a 
total of 15.76 acres of off-site preservation.
    The HCP and Environmental Assessment consider two alternatives to 
the proposed project: a reduced project alternative; and a no action 
alternative. Under the proposed project alternative, a permit would be 
issued for incidental take of the coastal California

[[Page 1497]]

gnatcatcher. This alternative would result in the permanent loss of 
5.91 acres of habitat that currently supports 2 pairs of gnatcatchers 
within the 28.9-acre project site. This alternative would permanently 
preserve 20.0 acres of habitat for the gnatcatcher.
    Under the reduced project alternative, on-site open space (lot A) 
would increase from 7.8 acres to approximately 13.8 acres through the 
elimination of 25 residential lots. Although this alternative reduces 
the impacts to occupied coastal sage scrub, the applicant has 
determined it to be financially infeasible.
    Under the no project alternative, the Service would not issue an 
incidental take permit to Kennedy Development. Kennedy Development 
would not construct the proposed residential development on the site 
and would not establish and manage preserves for the coastal California 
gnatcatcher. The extension of Mission Gate Drive would likely still 
occur due to proposed development on the adjacent property. Present 
disturbance of the project area would continue in the form of 
trespassing in gnatcatcher-occupied habitat, illegal dumping, erosion, 
and periodic fire. Considering that the area is zoned for residential 
use, it is likely that the area would eventually be developed for 
another residential development.
    We provide this notice pursuant to section 10(a) of the Endangered 
Species Act and regulations for implementing the National Environmental 
Policy Act of 1969 (40 CFR 1506.6). All comments that we receive, 
including names and addresses, will become part of the administrative 
record and may be made available to the public. We will evaluate the 
permit application, 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 gnatcatcher and the thread-leaved brodiaea. We 
will make a decision on permit issuance no sooner than 60 days from the 
date of this notice.

    Dated: January 7, 2002.
Miel R. Corbett,
Acting Manager, Region 1, California/Nevada Operations Office, 
Sacramento, California.
[FR Doc. 02-710 Filed 1-10-02; 8:45 am]