[Federal Register: February 7, 2005 (Volume 70, Number 24)]
[Page 6452-6454]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Availability of an Environmental Assessment and Receipt of 
Applications for Incidental Take Permits for the Arnaudo Brothers, 
Wathen-Castanos, and River East Holding Sites in Merced County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of applications.


SUMMARY: The Arnaudo Brothers, Wathen-Castanos, and River East Holding 
Sites (Applicants) have applied to the Fish and Wildlife Service 
(Service) for incidental take permits pursuant to section 10(a)(1)(B) 
of the Endangered Species Act (Act) of 1973, as amended. The Service is 
considering issuing 10-year permits to the Applicants that would 
authorize take of the endangered San Joaquin kit fox (Vulpes macrotis 
mutica, ``kit fox'') incidental to otherwise lawful activities 
associated with the residential and commercial development of four 
sites in Merced County, California. The projects would result in the 
incidental take of kit fox on the project sites through permanent 
removal of 182 acres of

[[Page 6453]]

habitat. Incidental take may also potentially occur during construction 
and ground disturbance activities, which may affect occupied dens and 
individual foxes.
    We request comments from the public on the permit applications and 
the Environmental Assessment, both of which are available for review. 
The permit applications include the proposed Habitat Conservation Plan 
(HCP) and associated Implementing Agreement. The HCP describes the 
proposed action and the measures that the Applicants will undertake to 
minimize and mitigate, to the maximum extent practicable, take of the 
kit fox.

DATES: We must receive your written comments on or before March 9, 

ADDRESSES: Please address written comments to Ms. Lori Rinek, U.S. Fish 
and Wildlife Service, 2800 Cottage Way, Room W-2605, Sacramento, 
California 95825. You also may send comments by facsimile to (916) 414-

FOR FURTHER INFORMATION CONTACT: Ms. Lori Rinek, Chief, Conservation 
Planning and Recovery Division, at (916) 414-6600.


Availability of Documents

    You may obtain copies of these documents for review by contacting 
the above office [see FOR FURTHER INFORMATION CONTACT]. Documents also 
will be available for public inspection, by appointment, during normal 
business hours at the above address [see ADDRESSES] and at the 
following Web site: http://www.harveyecology.com/.


Section 9 of the Act and Federal regulations prohibit the ``take''
of fish and wildlife species listed as endangered or threatened. Take
of federally-listed fish and wildlife is defined under the Act as
including to ``harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct.'' The
Service may, under limited circumstances, issue permits to authorize
incidental take (i.e., take that is incidental to, and not the purpose
of, the carrying out of an otherwise lawful activity). Regulations
governing incidental take permits for threatened species are found in
50 CFR 17.32.
The Applicants propose to develop 182 acres on 4 sites in the
unincorporated community of Santa Nella in western Merced County,
California: Arnaudo 1, Arnaudo 2, Wathen-Castanos, and River East. The
Arnaudo 1 and 2 and Wathen-Castanos sites are situated west and east of
State Route 33 respectively, and north of State Route 152. The O'Neill
Forebay State Wildlife Area lies west of the Delta-Mendota Canal, which
is located west of the project sites. To the south of the project
sites, the Delta-Mendota Canal and California Aqueduct flow from west
to east. The River East site, on which the proposed wastewater
treatment facility would be located, is situated to the east of
Interstate 5 and west of the Outside Canal. The proposed development
would occur on undeveloped parcels within an area of existing
residential and commercial development. The project sites contain, and
are adjacent to, habitat suitable to support kit fox. Critical habitat
for the kit fox has been neither designated nor proposed.
Kit foxes have historically been known to occur in the area of the
proposed projects, and have been seen south and northwest of the
project sites. At least 13 surveys for the kit fox have been conducted
in the Santa Nella area, of which 5 determined kit fox to be present in
the area. In 1992, a kit fox survey (conducted according to 1990
California Department of Fish and Game recommendations) was undertaken
for the Santa Nella community; however, no kit foxes were detected. Kit
foxes are known to occur south of the State Route 33/152 interchange. A
female with pups was observed in 2004 along Billie Wright Road. Kit fox
sightings and dens have also been reported in and around the proposed
Los Banos Grandes Reservoir and the proposed Villages of Laguna San
Luis project, both located south of the project sites. In the spring of
1998, a radio-collared kit fox was documented northwest of the Santa
Nella community within the right-of-way along the Delta-Mendota Canal.
Based on the results of these surveys and on other records, the Service
has determined that the implementation of the proposed projects would
likely result in take of kit fox through the permanent removal of 182
acres of habitat on the sites.
To mitigate for any take of kit fox on the project sites, the
Applicants propose to preserve, and manage in perpetuity, a total of
447.9 acres of kit fox habitat. Within the Santa Nella community, the
Applicants would establish movement corridors consisting of 39.8 acres
along the Delta-Mendota Canal and 27.1 acres along the west side of the
Outside Canal. In addition, a 5-acre refugium would be created north of
the San Luis Wasteway and east of the Delta-Mendota Canal. The
Applicants also propose to preserve in perpetuity 376 acres of off-site
habitat, which would provide breeding and foraging areas for source
populations located to the north and south of the Santa Nella
community. The combination of on-site and off-site habitat preservation
is intended to achieve the goal of protecting and maintaining habitat
to facilitate population interchange between the core population to the
south and northern kit fox populations, and to help ensure the survival
of source populations.
In addition to habitat preservation and management, the Applicants
propose to avoid and/or minimize the potential effect on kit foxes
associated with pre-construction and construction activities through
the adoption of various measures, including the Service's standardized
recommendations for protection of the kit fox prior to and during
ground disturbance activities. Furthermore, the Applicants have
identified measures to avoid and minimize any potential indirect
effects on kit foxes using preserved corridors adjacent to the proposed
development. Such measures include leash laws, signage and fencing,
night lighting standards, and pesticide and rodenticide restrictions.
The Service's Environmental Assessment evaluates the environmental
consequences of four alternatives, including: (1) The Proposed Project
Alternative, which involves the of issuance of incidental take permits
and implementation of the proposed HCP; (2) the Reduced Density
Alternative, which is identical to the Proposed Project Alternative,
except that residential housing construction within the project sites
would occur at half the density as that planned under the Proposed
Project Alternative; (3) the 1999 Draft HCP Alternative, which involves
the same level of development as the Proposed Project Alternative, but
differs in the approaches proposed to address potential impacts to kit
fox as a result of the development; and (4) the No Action Alternative,
which presumes that no incidental take permits would be issued and that
the proposed development would not proceed.
Although the Reduced Density Alternative does not differ from the
Proposed Project Alternative with respect to the establishment of
corridors and preservation of other conservation lands, the reduction
in housing density would potentially result in the creation of small
habitat patches, which could further adversely affect kit foxes. The
1999 Draft HCP Alternative, which proposes the preservation of off-site
habitat only, would result in an inferior conservation outcome for kit
fox than the Proposed Project Alternative because it would not lead to
the permanent establishment of movement

[[Page 6454]]

corridors through the Santa Nella community. The Service considers
movement corridors, which would facilitate population interchange
between northern and southern kit fox populations, to be of critical
importance to the survival of the species. The No Action Alternative
would not provide for the long-term conservation of kit fox in the area
because conservation lands and movement corridors would not be
permanently established.
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.
This notice is provided pursuant to section 10(a) of the Act and
the regulations of the National Environmental Policy Act (NEPA) of 1969
(40 CFR 1506.6). All comments that we receive, including names and
addresses, will become part of the official administrative record and
may be made available to the public. We will evaluate the application,
associated documents, and comments submitted thereon to determine
whether the application meets the requirements of NEPA regulations and
section 10(a) of the Act. If we determine that those requirements are
met, we will issue a permit to the Applicant for the incidental take of
the kit fox. We will make our final permit decision no sooner than 30
days from the date of this notice.

Dated: January 28, 2005.
Mike Boylen,
Deputy Manager, California/Nevada Operations Office, Sacramento,
[FR Doc. 05-2250 Filed 2-4-05; 8:45 am]