[Federal Register: December 9, 2004 (Volume 69, Number 236)]
[Page 71422-71423]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Proposed Low Effect Habitat Conservation Plan for Shaw Mira Loma 
LLC, Riverside County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: Shaw Mira Loma LLC (Applicant) has applied to the U.S. Fish 
and Wildlife Service (Service) for a 1-year incidental take permit for 
one covered species pursuant to section 10(a)(1)(B) of the Endangered 
Species Act of 1973, as amended (Act). The application addresses the 
potential for ``take'' of the endangered Delhi Sands flower-loving fly 
(Rhaphiomidas terminatus abdominalis) associated with construction of 
commercial and industrial facilities within a 5.02-acre parcel located 
in the unincorporated City of Mira Loma, Riverside County, California. 
A conservation program to mitigate for the project activities would be 
implemented as described in the proposed Shaw Mira Loma LLC Low Effect 
Habitat Conservation Plan (proposed Plan), which would be implemented 
by the Applicant.
    We are requesting comments on the permit application and on the 
preliminary determination that the proposed Plan qualifies as a ``Low-
effect'' Habitat Conservation Plan, eligible for a categorical 
exclusion under the National Environmental Policy Act (NEPA) of 1969, 
as amended. The basis for this determination is discussed in the 
Environmental Action Statement (EAS) and the associated Low Effect

[[Page 71423]]

Screening Form, which are also available for public review.

DATES: Written comments should be received on or before January 10, 

ADDRESSES: Comments should be addressed to the Field Supervisor, Fish 
and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden 
Valley Road, Carlsbad, California 92008. Written comments may be sent 
by facsimile to (760) 918-0638.

FOR FURTHER INFORMATION CONTACT: Ms. Karen Goebel, Assistant Field 
Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES); 
telephone: (760) 431-9440.


Availability of Documents

    Individuals wishing copies of the application, proposed Plan, and 
EAS should immediately contact the Service by telephone at (760) 431-
9440 or by letter to the Carlsbad Fish and Wildlife Office (see 
ADDRESSES). Copies of the proposed Plan and EAS also are available for 
public inspection during regular business hours at the Carlsbad Fish 
and Wildlife Office (see ADDRESSES).


    Section 9 of the Act and its implementing Federal regulations 
prohibit the take of animal species listed as endangered or threatened. 
The definition of take under the Act includes the following activities: 
to 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). However, under section 10(a) of the Act, the Service may 
issue permits to authorize incidental take of listed species. 
``Incidental take'' is defined by the Act as take that is incidental 
to, and not the purpose of, carrying out an otherwise lawful activity. 
Regulations governing incidental take permits for threatened and 
endangered species, respectively, are found in the Code of Federal 
Regulations at 50 CFR 17.22 and 50 CFR 17.32
    The Applicant is seeking a permit for take of the Delhi Sands 
flower-loving fly during the life of the permit. The project 
encompasses construction of commercial and industrial facilities within 
the 5.02-acre project site. The Delhi Sands flower-loving fly has been 
observed on the proposed project site; however, the Service believes 
that the site has limited long-term conservation value for the fly 
because the site is surrounded on all sides by development, which 
effectively isolates the site from other locations of the species. 
Construction of the proposed project would result in the death or 
injury of any Delhi Sands flower-loving flies that may remain on the 
site. The project site does not contain any other rare, threatened, or 
endangered species or habitat. No critical habitat for any listed 
species occurs on the project site.
    The Applicant proposes to mitigate the effects to the Delhi Sands 
flower-loving fly associated with the covered activities by fully 
implementing the Plan. The purpose of the proposed Plan's conservation 
program is to promote the biological conservation of the Delhi Sands 
flower-loving fly. The Applicant proposes to mitigate the impacts of 
the taking of the Delhi Sands flower-loving fly by purchasing two 
credits of occupied, high quality habitat at a Service-approved 
conservation bank.
    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed Plan, which includes measures 
to mitigate impacts of the project on the Delhi Sands flower-loving 
fly. Three alternatives to the taking of the listed species under the 
Proposed Action are considered in the proposed Plan. Under the No 
Action Alternative, no permit would be issued, and no construction 
would occur. Under the Reduced Project Alternative, incidental take of 
the Delhi Sands flower-loving fly would be authorized, but the 
applicant would reduce the area of impact and maintain a small Delhi 
Sands flower-loving fly preserve on site. Under the Western Riverside 
Multiple Species Habitat Conservation Plan (MSHCP) Alternative, 
incidental take would be authorized under the permit issued for this 
regional plan, and Delhi Sands flower-loving fly conservation would be 
consistent with the MSHCP.
    The Service has made a preliminary determination that approval of 
the proposed Plan qualifies as a categorical exclusion under NEPA, as 
provided by the Department of the Interior Manual (516 DM 2, Appendix 1 
and 516 DM 6, Appendix 1) and as a ``low-effect'' plan as defined by 
the Habitat Conservation Planning Handbook (November 1996). 
Determination of Low-effect Habitat Conservation Plans is based on the 
following three criteria: (1) Implementation of the proposed Plan would 
result in minor or negligible effects on federally listed, proposed, 
and candidate species and their habitats; (2) implementation of the 
proposed Plan would result in minor or negligible effects on other 
environmental values or resources; and (3) impacts of the proposed 
Plan, considered together with the impacts of other past, present and 
reasonably foreseeable similarly situated projects would not result, 
over time, in cumulative effects to environmental values or resources 
which would be considered significant.
    Based upon this preliminary determination, we do not intend to 
prepare further NEPA documentation. We will consider public comments in 
making the final determination on whether to prepare such additional 
    This notice is provided pursuant to section 10(c) of the Act. We 
will evaluate the permit application, the proposed Plan, and comments 
submitted thereon to determine whether the application meets the 
requirements of section 10 (a) of the Act. If the requirements are met, 
we will issue a permit to Shaw Mira Loma LLC for the incidental take of 
the Delhi Sands flower-loving fly from development of the Applicant's 
parcel on Philadelphia Avenue in Riverside County, California.
    Pursuant to an order issued on June 10, 2004, by the District Court 
for the District of Columbia in Spirit of the Sage Council v. Norton 
Civil Action No. 98-1873 (D. D.C.), the Service is enjoined from 
issuing new section 10(a)(1)(B) permits or related documents containing 
``No Surprises'' assurances, as defined by the Service's ``No 
Surprises'' rule published at 63 FR 8859 (February 23, 1998), until 
such time as the Service adopts new permit revocation rules 
specifically applicable to section 10(a)(1)(B) permits in compliance 
with the public notice and comment requirements of the Administrative 
Procedures Act. This notice concerns a step in the review and 
processing of a section 10(a)(1)(B) permit and any subsequent permit 
issuance will be in accordance with the Court's order. Until such time 
as the June 10, 2004, order has been rescinded or the Service's 
authority to issue permits with ``No Surprises'' assurances has been 
otherwise reinstated, the Service will not approve any incidental take 
permits or related documents that contain ``No Surprises'' assurances.

    Dated: December 2, 2004.
Ken McDermond,
Deputy Manager, California/Nevada Operations Office, Sacramento, 
[FR Doc. 04-27021 Filed 12-8-04; 8:45 am]