[Federal Register: June 4, 2004 (Volume 69, Number 108)]
[Page 31632-31635]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of the Final Environmental Impact Statement/
Environmental Impact Report for an Incidental Take Permit for the 
Multiple Habitat Conservation Program, Carlsbad, CA.

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of application.


SUMMARY: On December 9, 1999, the City of Carlsbad, California, applied 
to the U.S. 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 Service is requesting public comment on the 
Carlsbad Subarea Plan/Habitat Management Plan (HMP), draft Urgency 
Ordinance, and Implementing Agreement. We are also seeking public 
comments on the final Environmental Impact Statement/Environmental 
Impact Report (EIS/EIR) for the Multiple Habitat Conservation Program 
for the Cities of Carlsbad, Encinitas, Escondido, Oceanside, San 
Marcos, Solana Beach, and Vista (MHCP), and are making available for 
public review the responses to comments on the draft MHCP EIS/EIR. The 
proposed permit on the HMP would authorize the incidental take of 19 
animal species, including 12 unlisted species should any of them become 
listed, under the Act, during the term of the proposed 50-year permit. 
The permit is needed to authorize take of listed animal species 
(including harm, injury and harassment) during public and private 
development, and during monitoring and management of preserve areas in 
the approximately 6,786-acre Plan Area in Carlsbad, California. The 
permit would also include two listed and four unlisted plant species, 
the take of which is not prohibited under Federal law, in recognition 
of the conservation benefits provided to these species under the larger 
seven city MHCP and the Carlsbad HMP.

DATES: We must receive your written comments on or before July 6, 2004.

ADDRESSES: Please send comments to Mr. Jim Bartel, Field Supervisor, 
U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley

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Road, Carlsbad, California 92009; facsimile (760) 431-9618.

FOR FURTHER INFORMATION CONTACT: Ms. Therese O'Rourke, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES), 
telephone number (760) 431-9440.


Public Review Process

    On June 28, 2000, a notice of receipt of an incidental take permit 
application and availability of an Environmental Assessment for the HMP 
was published in the Federal Register for a 30-day public comment 
period (65 FR 39919). We received a total of 32 comment letters on the 
draft Environmental Assessment. In response to comments received during 
the 30-day public review period, the Service chose to complete its 
obligations under the National Environmental Policy Act through the 
EIS/EIR prepared for the MHCP Plan, in which the City of Carlsbad's HMP 
is fully analyzed. Notice of availability of the draft EIS/EIR and 
draft MHCP Plan was published in the Federal Register on December 28, 
2001 for a 120-day public comment period (66 FR 67292). The draft EIS/
EIR analyzed the potential environmental impacts that may result from 
the Federal action of authorizing incidental take anticipated to occur 
with implementation of the MHCP, and identified various alternatives. 
We received a total of 41 comment letters on the draft EIS/EIR. A 
response to each comment has been included in volume 2 of the final 
    The Carlsbad HMP has been modified by addendum, since the draft 
EIS/EIR was published, as a result of responding to comments from the 
California Coastal Commission (CCC) in order to receive a Federal 
consistency determination from the CCC. All of the changes made to the 
HMP, as a result of the CCC (included in the addendum), are limited to
the coastal zone of the City, and do not substantially change the
effects analysis and proposed action in the final EIS/EIR. Thus, no
additional NEPA analysis was conducted of these changes.
Due to the amount of time that has passed since the public comment
period on the original application for an incidental take permit for
the Carlsbad HMP, we are publishing this notice to inform the public of
the proposed action and to make available for review the final MHCP
EIS/EIR, which includes responses to public comments received on the
draft EIS/EIR.

Availability of Documents

Copies of the three volume subregional MHCP Plan, Carlsbad HMP for
the proposed permit, Implementing Agreement, draft Urgency Ordinance,
and final EIS/EIR are available for review at the following locations
in California:
1. City of Carlsbad--1635 Faraday Avenue, Carlsbad, CA 92008.
2. Carlsbad City Hall--1200 Carlsbad Village Drive, Carlsbad, CA
3. U.S. Fish and Wildlife Service--6010 Hidden Valley Road,
Carlsbad, CA 92009.
4. Carlsbad City Library (South)--1775 Dove Lane, Carlsbad, CA
5. Ceorgina Cole Library (North)--1250 Carlsbad Village Drive,
Carlsbad, CA 92009.
The responses to comments on the draft Environmental Assessment for
the Carlsbad HMP are available upon request (see FOR FURTHER


The City of Carlsbad seeks an incidental take permit and assurances
for 19 animal species (5 endangered, 2 threatened, and 12 unlisted),
and assurances for 6 plant species (1 endangered, 1 threatened, and 4
unlisted). The animal species include 16 bird species (5 endangered, 2
threatened, and 9 unlisted); 2 unlisted insect species; and 1 unlisted
reptile species. Collectively the 25 listed and unlisted species are
referred to as Covered Species by the HMP.
An additional six plant species (one endangered, one threatened,
and four unlisted) are included in the HMP, but coverage would not be
granted until the respective other City which has the critical
population of the plant receives a permit under section 10(a)1(B) of
the Act for their subarea plan/HMP. Please note that two of these plant
species (one threatened and one unlisted) also need a commitment of
funding for management and monitoring before coverage would be granted.
Lastly, 10 plants (3 endangered, 2 threatened, and 5 unlisted) and 2
endangered crustaceans are also included in the HMP, but coverage would
not be granted until a funding source (such as regional funding) is
available to the City of Carlsbad to fund management and monitoring
necessary to adequately protect these species. Please note that even if
the City of Carlsbad acquires the necessary funding to receive coverage
for the 10 plant species above, one of the unlisted plants would remain
not covered until another MHCP City receives a permit under section
10(a)1(B) of the Act. Lastly, six vernal pool species (two endangered
plants, two endangered crustaceans, one threatened plant, and one
unlisted plant) could not receive coverage until the City of Carlsbad
also receives legal control over the protection, management, and
monitoring of the vernal pools located adjacent to the Poinsettia Train
The species for which coverage is proposed under the Carlsbad HMP
are presently included as exhibit A to the draft Implementing
Agreement. It is intended that exhibits A, B, and C to the Implementing
Agreement will be added to the Carlsbad HMP, if approved by the
Carlsbad City Council. This, if approved, will be reflected in the
final documents submitted in application for the section 10(a)(1)(B)
A permit is needed because section 9 of the Act and Federal
regulations prohibit the ``take'' of animal species listed as
endangered or threatened. Take of listed animal species, as defined
under the Act, includes actions that kill, harm, or harass such
species. Harm includes significant habitat modification or degradation
that actually kills or injures listed animals by significantly
impairing essential behavioral patterns, including breeding, feeding,
and sheltering [50 CFR 17.3(c)]. Under limited circumstances, the
Service may issue permits to authorize incidental take; i.e., take that
is incidental to, and not the purpose of, otherwise lawful activity.
The take prohibitions of the Act do not apply to listed plants,
although section 9 of the Act does prohibit certain acts, including the
removal or destruction of listed plants in violation of State law.
Although take of listed plants is not prohibited under the Act, we
propose to name one endangered and one threatened plant species on the
permit in recognition of the conservation measures and benefits that
would be provided to them under the proposed HMP.
Assurances to the City of Carlsbad in case of changed or unforeseen
circumstances would be provided as stated in the Service's regulations
at 50 CFR 17.22(b)(5), and 17.32(b)(5). Regulations governing
incidental take permits for threatened and endangered species are found
in 50 CFR 17.32 and 17.22.

Proposed Action

The Service's proposed action is to issue an incidental take permit
to the City of Carlsbad. The permit application from the City includes
a Subarea Plan/HMP that qualifies as both a Habitat Conservation Plan
pursuant to Federal law and a Natural Community Conservation Plan
pursuant to State law. On December 10, 1993, we issued a final special
rule for the coastal

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California gnatcatcher (Polioptila californica californica) pursuant to
section 4(d) of the Act (58 FR 65088). This rule allows incidental take
of the gnatcatcher if such take results from activities conducted under
a plan prepared pursuant to the State of California's Natural Community
Conservation Planning Act of 1991, its associated Process Guidelines,
and the Southern California Coastal Sage Scrub Conservation Guidelines.
Consistent with the Conservation Guidelines, while planning for natural
communities is underway, the special rule allows interim loss of no
more than five percent of the coastal sage scrub habitat in specified
areas (subregions).
The MHCP is one of several large, multiple-jurisdictional habitat
planning efforts in San Diego County, each of which constitutes a
``subregional'' plan under the State of California's Natural Community
Conservation Planning Act of 1991. The MHCP is intended to protect
viable populations of native plant and animal species and their
habitats in perpetuity through the creation of a preserve system, while
accommodating continued economic development, in northwestern San Diego
County. The MHCP encompasses 175 square miles comprised of the
following seven incorporated cities: Carlsbad, Encinitas, Escondido,
Oceanside, San Marcos, Solana Beach, and Vista. The MHCP is designed to
be implemented through individual Subarea Plans prepared by
participating cities, such as the City of Carlsbad.
The MHCP would create a preserve system that protects, manages, and
monitors in perpetuity 67 percent of coastal sage scrub, 70 percent of
chaparral, 53 percent of coastal sage/chaparral mix, and 100 percent of
riparian and estuarine habitats in the study area. (Please note that
the December 28, 2001 Federal Register notice requesting public
comments on the draft EIS/EIR inaccurately stated the level of
preservation for coastal sage/chaparral mix to be 80 percent when the
stated amount of this habitat type to be preserved according to the
draft EIS/EIR was 50 percent.) A major component of the preserve is the
conservation of 400 to 500 acres of contiguous coastal sage scrub
centered around the cities of Carlsbad, Encinitas, and the extreme
southwest portion of San Marcos, which supports 16 to 23 pairs of the
federally threatened coastal California gnatcatcher. In addition, 338
acres of coastal sage scrub would be restored in key locations within
the preserve area. Overall, 20,428 acres (68 percent) of the natural
habitats found in the total MHCP study area would be conserved.
Activities proposed for coverage in the City of Carlsbad Subarea
Plan/HMP, which require discretionary action by a permittee, subject to
consistency with the MHCP and HMP policies, include: public and private
development projects, including a City Municipal golf course; various
infrastructure projects such as roads, recreational trails and
facilities; and management of preserve areas.
As described in the subregional MHCP, Subarea Plan/HMP, and EIS/
EIR, the City of Carlsbad proposes to create a preserve system to
mitigate the impact of public and private development over a 50-year
period by protecting 6,786 acres (6,478 acres within the City of
Carlsbad and 308 outside the City of Carlsbad) of habitat for the
Covered Species. The majority of the preserve (5,928 acres) consists of
existing and proposed ``hard-lined'' areas designated for 100 percent
conservation. Up to 550 acres would be conserved on lands designated as
``standards'' areas which have established assured levels of
conservation through applying biological criteria (rather than
delineating the project footprint by a hard-line). An additional 308
acres would be conserved outside of the City of Carlsbad's Subarea for
impacts that would occur within the City's Subarea. Total conservation
within the MHCP Subregional Preserve as a result of the City of
Carlsbad's Subarea Plan/HMP is estimated to be 6,786 acres. The
preserve within the City's Subarea would contain, at a minimum, the
following habitats: Coastal sage scrub (2,139 acres), chaparral (676
acres), southern maritime chaparral (342 acres), grassland (707 acres),
oak woodland (24 acres), eucalyptus woodland (99 acres), marsh (1,252
acres), riparian (494 acres), and other non-habitat lands (745 acres).
In addition, the subregional MHCP and Subarea Plan/HMP include measures
to avoid and minimize incidental take of the Covered Species,
emphasizing project design modifications to protect both habitats and
species' individuals. A monitoring and reporting plan would gauge the
Plan's success based on achievement of biological species objectives
and reserve design criteria, and would ensure that conservation keeps
pace with open space conversion. The subregional MHCP and Subarea Plan/
HMP also include adaptive management which allows for changes in the
conservation program if the biological species objectives are not met,
or new information becomes available to improve the efficacy of the
MHCP's and HMP's conservation strategy.
If the Service approves the City of Carlsbad's Subarea Plan/HMP,
and issues an incidental take permit to the City of Carlsbad, the five
percent limit on interim loss of coastal sage scrub, imposed as part of
the Natural Community Conservation Planning Program and the special
rule for the gnatcatcher, would be replaced by the conditions of the
permit and the Implementing Agreement. Carlsbad would then exercise its
land-use review and approval powers in accordance with the permit,
Subarea Plan/HMP, and Implementing Agreement to implement the City of
Carlsbad's Subarea Plan/HMP and assemble its preserve. The City would
amend its General Plan to include the Subarea Plan/HMP as part of the
Open Space and Conservation Element of the General Plan.
Additionally, the City of Carlsbad would use its local regulatory
authority to create or modify ordinances to implement the City's
Subarea Plan/HMP. Initially an urgency ordinance would be used to
implement the plan, but ultimately a new Habitat Loss and Incidental
Take (HLIT) ordinance would be created to implement the conservation
and development standards contained in the Subarea Plan/HMP for those
development projects outside of Covered Projects (i.e., specific
projects identified in the Subarea Plan/HMP that could be covered for
incidental take pursuant to the proposed incidental take permit). The
HLIT ordinance would also provide local regulations for narrow endemic
species and wetlands. The City would also amend its existing Grading
ordinance to provide regulations for clearing and grubbing of sensitive
habitats and require compliance with the City's Subarea Plan/HMP prior
to grading of sensitive habitat. Special standards would be applied to
those areas of sensitive habitat within the designated Coastal Zone,
pursuant to Carlsbad's certified Local Coastal Program.


The Draft EIS/EIR considered three alternatives in addition to the
preferred alternative/proposed project described above: (1) A reduced
preservation alternative; (2) an increased preservation alternative;
and (3) a no project alternative.
Under the reduced preservation alternative, the preserve system
would be similar to the proposed project; however, the preserve system
would not include: Preservation of the 400 to 500 acres of contiguous
coastal sage scrub in the coastal California gnatcatcher core area and
the restoration of 338 acres of coastal sage scrub habitat throughout

[[Page 31635]]

the MHCP planning area. Overall, 19,928 acres (67 percent) of the
habitat in the total MHCP study area would be conserved under this
Under the increased preservation alternative, all large contiguous
areas of habitat, all areas supporting major and critical species
populations or habitat areas, and all important functional linkages and
movement corridors between them would be conserved. Approximately 83
percent of coastal sage scrub, 93 percent of chaparral, 95 percent of
coastal sage/chaparral mix, and 100 percent of riparian and estuarine
habitats would be conserved in the total MHCP study area. Overall,
24,565 acres (82 percent) of the habitat in the study area would be
conserved under this alternative.
Under the no project alternative, only listed species and habitat
occupied by such species would receive protection. It was estimated
that conservation levels would include 19 percent of coastal sage
scrub, 31 percent of chaparral, and 18 percent of coastal sage/
chaparral mix within the MHCP study area. Overall, 8,989 acres (30
percent) of natural habitats in the study area would be conserved under
this alternative.

Purpose of Final EIS/EIR

The analysis provided in the final EIS/EIR is intended to
accomplish the following: Inform the public of the Service's proposed
action; address public comments received on the draft MHCP EIS/EIR;
disclose the direct, indirect, and cumulative environmental effects of
our proposed action; and indicate any irreversible commitment of
resources that would result from implementation of the proposed action.
This notice is provided pursuant to section 10 of the Act and National
Environmental Policy Act (1972) regulations (40 CFR 1506.6).


We will consider all comments received during the comment period.
We also will evaluate the permit application and associated documents
to determine whether the application meets the requirements of section
10(a) of the Act. If we determine that the requirements are met, we
will issue an incidental take permit to the City of Carlsbad.
Subsequent to this decision, we will publish a separate notice of the
availability of our Record of Decision and other decision documents.

D. Kenneth McDermond,
Deputy Manager, Region 1, California/Nevada Operations Office,
Sacramento, California.
[FR Doc. 04-11875 Filed 6-3-04; 8:45 am]