[Federal Register: March 9, 2007 (Volume 72, Number 46)]
[Page 10781-10784]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

Notice of Availability of a Final Environmental Impact Statement/
Environmental Impact Report for the East Contra Costa County Habitat 
Conservation Plan and Natural Community Conservation Plan and Receipt 
of Application for an Incidental Take Permit From the Contra Costa 
County Flood Control and Water District, Contra Costa County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: This notice announces the receipt of an application from the 
Contra Costa County Flood Control and Water District (Flood Control 
District) and the availability of the final Environmental Impact 
Statement/Environmental Impact Report (EIS/EIR), East Contra Costa 
County Habitat Conservation Plan and Natural Community Conservation 
Plan (Plan), and Implementing Agreement (IA) for public review and 
comment. A notice of availability of the draft EIS/EIR was published in 
the Federal Register on September 2, 2005. The application described in 
that notice did not include the Flood Control District, which has since 
been added to the list of proposed permittees. The Fish and Wildlife 
Service (Service) is considering the proposed action of issuing a 30-
year incidental take permit for 28 species in response to the 
application. The proposed permittees are: Contra Costa County (County); 
the cities of Brentwood, Clayton, Oakley, and Pittsburg (cities); the 
Flood Control District; East Bay Regional Park District; and an 
Implementing Entity to be formed by the County and the cities to 
implement certain aspects of the Plan. The proposed permit would 
authorize the incidental take of individual members of species listed 
under the ESA. The permit is needed because take of species could occur 
during proposed urban development activities, rural infrastructure 
projects, and preserve management activities within a 174,018-acre 
planning area located in eastern Contra Costa County, California.

DATES: The 30-day waiting period will end on April 9, 2007. Written 
comments should be received on or before this date.

ADDRESSES: Send comments by mail or facsimile to: (1) Lori Rinek, 
Chief, Conservation Planning and Recovery Division, Sacramento Fish and 
Wildlife Office, 2800 Cottage Way, Room W-

[[Page 10782]]

2605, Sacramento, California 95825; facsimile 916-414-6713; and/or (2) 
John Kopchik, Principal Planner, Contra Costa County Community 
Development Department, 651 Pine Street, Fourth Floor Northwest, 
Martinez, CA 94553; facsimile 925-335-1299.

FOR FURTHER INFORMATION CONTACT: (1) Sheila Larsen, Wildlife Biologist, 
or Lori Rinek, Chief, Conservation Planning and Recovery Division, 
Sacramento Fish and Wildlife Office, telephone 916-414-6600; or (2) 
John Kopchik, Principal Planner, Contra Costa County Community 
Development Department, telephone 925-335-1227.


Availability of Documents

    Copies of the Plan, IA and Final EIS/EIR are available for public 
review from 9 a.m. to 5 p.m., at the Contra Costa County Community 
Development Department (see ADDRESSES). These documents also are 
available on the Association's Web site: http://www.cocohcp.org.

    In addition, copies of all documents are also available at the 
following local agency offices:
    (1) City of Brentwood, Community Development Dept., 104 Oak Street, 
Brentwood, CA 94513.
    (2) City of Clayton, Community Development Department, 6000 
Heritage Trail, Clayton, CA 94517.
    (3) City of Oakley, Community Development Department, 3231 Main 
Street, Oakley, CA 94561.
    (4) City of Pittsburg, Planning Department, 65 Civic Drive, 
Pittsburg, CA 94565.
    (5) East Bay Regional Park District, 2950 Peralta Oaks Court, 
Oakland, CA 94605.
    The documents are also available at the following Contra Costa 
Library locations:
    (6) 751 Third Street, Brentwood, CA.
    (7) 6125 Clayton Road, Clayton, CA.
    (8) Freedom High School, 1050 Neroly Road, Oakley, CA.
    (9) 80 Power Avenue, Pittsburg, CA.
    (10) Riverview Middle School, 205 Pacifica Avenue, Bay Point, CA.
    You also may obtain copies of these documents for review by 
contacting Sheila Larsen [see FOR FURTHER INFORMATION CONTACT]. 
Documents also will be available for public inspection during normal 
business hours at the Sacramento Fish and Wildlife Office [see 

Background Information

    Section 9 of the ESA and Federal regulations prohibit the take of 
fish and wildlife species listed as endangered or threatened (16 U.S.C. 
1538). The term ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct (16 U.S.C. 1532). Harm includes significant habitat 
modification or degradation that actually kills or injures listed 
wildlife 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 of listed fish or wildlife; i.e., take that is 
incidental to, and not the purpose of, otherwise lawful activity. 
Regulations governing incidental take permits for threatened and 
endangered species are found in 50 CFR 17.32 and 17.22, respectively.
    Although take of listed plant species is not prohibited under the 
ESA, and therefore cannot be authorized under an incidental take 
permit, plant species may be included on a permit in recognition of the 
conservation benefits provided to them under a habitat conservation 
plan. All species included on an incidental take permit would receive 
assurances under the Services ``No Surprises'' regulation [50 CFR 
17.22(b)(5) and 17.32(b)(5)].
    In response to the proposed permittees' application, the Service 
proposes to issue an incidental take permit to the following local 
agencies: Contra Costa County (County); the cities of Brentwood, 
Clayton, Oakley, and Pittsburg (cities); Flood Control District; and 
East Bay Regional Park District. An incidental take permit is also 
proposed to be issued to an Implementing Entity to be formed by the 
County and cities to implement certain aspects of the Plan. The local 
agencies and the Implementing Entity are collectively referred to as 
the ``permittees''. The Association has prepared the Plan on behalf of 
the permittees to satisfy the application requirements for a section 
10(a)(1)(B) incidental take permit under the ESA and a section 2835 
permit under the California Natural Community Conservation Planning Act 
of 2003 (NCCPA). Thus, the Plan constitutes a Habitat Conservation Plan 
pursuant to the ESA, and a Natural Community Conservation Plan (NCCP) 
pursuant to the California NCCPA.
    The permittees seek a 30-year incidental take permit for covered 
activities within a proposed 174,018-acre planning area, located 
entirely in eastern Contra Costa County, California. They are 
requesting a permit for 28 species, 8 of which are currently listed as 
threatened or endangered under the ESA. Of these 28 species, the 
Association requests a permit and assurances for 17 animal species and 
assurances for 11 plant species. Proposed covered species include 3 
wildlife species, currently listed as endangered under the ESA [San 
Joaquin kit fox (Vulpes macrotus mutica), longhorn fairy shrimp 
(Brachinecta longiantenna), and vernal pool tadpole shrimp (Lepidurus 
packardi)] and 5 wildlife species currently listed as threatened under 
the Federal ESA [Alameda whipsnake (Masticophis lateralis euryxanthus), 
giant garter snake (Thamnophis gigas), California tiger salamander 
(Ambystoma californiense), California red-legged frog (Rana aurora 
draytonii), and vernal pool fairy shrimp (Brachinecta lynchi)]. The 
proposed covered species also include 9 wildlife species and 11 plant 
species that are not currently listed under the ESA: Townsend's western 
big-eared bat (Corynorhinus townsendii townsendii), tricolored 
blackbird (Agelaius tricolor), golden eagle (Aquila chrysaetos), 
western burrowing owl (Athene cunicularia hypugea), Swainson's hawk 
(Buteo swainsonii), silvery legless lizard (Anniella pulchra pulchra), 
western pond turtle (Clemmys marmorata), foothill yellow-legged frog 
(Rana boylii), midvalley fairy shrimp (Brachinecta mesovallensis), 
Mount Diablo manzanita (Arctostaphylos auriculata), brittlescale 
(Atriplex depressa), San Joaquin spearscale (Atriplex joanquiniana), 
big tarplant (Blepharizonia plumosa ssp. plumosa), Mount Diablo fairy 
lantern (Calochortus pulchellus), recurved larkspur (Delphinium 
recurvatum), round-leaved filaree (Erodium macrophyllum), Diablo 
helianthella (Helianthella castanea), Brewer's dwarf flax (Hesperolinon 
breweri), showy madia (Madia radiata), and adobe navarretia (Navarretia 
nigelliformis ssp. nigelliformis).
    If the proposed Plan is approved and the permit issued, take 
authorization of covered listed wildlife species would be effective at 
the time of permit issuance. Take of the currently non-listed covered 
wildlife species would be authorized concurrent with the species' 
listing under the ESA, should they be listed during the duration of the 
permit. Collectively, the 28 listed and unlisted species are referred 
to as the ``covered species'' in the Plan.
    The applicants propose to minimize and mitigate the effects to 
covered species associated with the covered activities by participating 
in the Plan. The proposed Plan is intended to be a comprehensive and 
multi-jurisdictional document, providing for regional species 
conservation and habitat planning, while allowing the prospective 
permittees to better manage

[[Page 10783]]

anticipated growth and development. The proposed Plan also is intended 
to provide a coordinated process for permitting and mitigating the take 
of covered species as an alternative to the current project-by-project 
    In order to define a reasonable range of expected growth, the 
proposed Plan defines two permit areas: the initial urban development 
area and the maximum urban development area. Although the initial and 
maximum urban development areas bound the range of the proposed permit 
area, the final permit area may lie somewhere in between, depending on 
local land use decisions that occur during the proposed 30-year permit 
term. The proposed Plan, therefore, encompasses a range of alternative 
permit areas. Both the initial and maximum urban development areas are 
based on current general plans of the local jurisdictions.
    The proposed initial urban development area is defined by: (1) The 
Urban Limit Line (ULL) of Contra Costa County and the city limits of 
the participating cities (Pittsburg, Clayton, Oakley, and Brentwood), 
whichever is largest; (2) the footprint of specific rural 
infrastructure projects outside the ULL and the city limits of 
participating cities; and (3) the boundary of any land acquired in fee 
title or conservation easement and managed under the Plan.
    Up to 8,670 acres of ground-disturbing urban development activities 
within the ULL are proposed to be permitted under the initial urban 
development. The proposed maximum urban development area is the largest 
extent to which urban development could expand under the terms of the 
proposed Plan. Under this scenario, up to 11,853 acres of ground-
disturbing urban development activities within the permit area could be 
allowed, as long as the conditions of the Plan are met. With either 
urban development area, an additional 1,126 acres of impact are 
expected from rural infrastructure projects and activities within the 
Plan's preserves. Thus, total impacts allowed under the Plan, are 9,796 
acres and 13,029 acres with the initial and maximum urban development 
areas, respectively.
    The conservation strategy was designed to minimize and mitigate the 
impacts of covered activities, contribute to the recovery of listed 
covered species, and protect and enhance populations of non-listed 
covered species, as proposed. The proposed conservation strategy 
provides for the establishment, enhancement, and long-term management 
of the preserves for the benefit of covered vegetation communities, 
covered species, and overall biodiversity and ecosystem functions. The 
proposed preserves would also serve to achieve other complementary 
goals such as recreation, grazing, and crop production, as long as the 
primary biological goals of the Plan are met and not compromised. The 
system of new preserves would likely be linked to existing protected 
lands to form a network of protected areas outside the area where new 
urban growth is proposed to be permitted under the Plan.
    On September 2, 2005, a notice was published in the Federal 
Register (70 FR 52434) announcing that the Service had received an 
application for an incidental take permit from the Association and the 
availability of the draft EIS/EIR. The draft EIS/EIR analyzed the 
potential environmental impacts that may result from the Federal action 
of authorizing incidental take associated with implementation of the 
Plan and the identified alternatives. We received a total of 18 comment 
letters on the draft EIS/EIR. A response to each comment received has 
been included in the final EIS/EIR.


    The draft EIS/EIR analyzed three alternatives in addition to the 
proposed Plan described above. The proposed Plan was identified as 
Alternative 1 (also referred to as Conservation Strategy A). The three 
other alternatives are described below.
    Alternative 2 (also referred to as Conservation Strategy B) would 
provide for the same size planning area, located entirely in eastern 
Contra Costa County, with the same preserve size as the proposed Plan, 
except that the location of the preserve would be modified. 
Modification of the preserve locations would result in increased 
protection of chaparral and cultivated agriculture and decreased 
protection of grassland. This alternative would also involve less 
riparian restoration than the proposed Plan. Other elements of the 
proposed Plan would remain the same, including species and communities 
covered, conservation measures, monitoring and adaptive management, and 
implementation approach.
    Compared to the Proposed Plan, Alternative 3 (the Reduced 
Development Area Alternative) would provide for a reduced level of take 
due to a reduced permit area. Existing open space or agricultural lands 
within the ULL that are not currently designated for development would 
be conserved. Under this alternative, the permit area would be 6,991 
acres. Other elements of the proposed Plan would remain the same 
including the species and communities covered, conservation measures, 
monitoring and adaptive management, and implementation approach.
    Under the Alternative 4 (the No-Action/No-Project alternative), the 
proposed Plan would not be adopted, and permits pursuant to Section 
10(a)(1)(B) of the Act and Section 2835 of the NCCPA would not be 
issued by the Service and California Department of Fish and Game, 
respectively. Compliance with the ESA would continue to be addressed on 
a case-by-case basis.

National Environmental Policy Act

    Proposed permit issuance triggers the need for compliance with the 
National Environmental Policy Act (NEPA) and the California 
Environmental Quality Act (CEQA). Accordingly, a joint final NEPA/CEQA 
document has been prepared. The Service is the Lead Agency responsible 
for compliance under NEPA, and the Association is the Lead Agency with 
responsibility for compliance with CEQA. As NEPA Lead Agency, the 
Service is providing notice of the availability of the final EIS/EIR 
and is making available for public review the responses to comments on 
the draft EIS/EIR.

Public Review

    The Service and Association invite the public to review the final 
Plan, final EIS/EIR, and final IA during a 30-day public waiting period 
[see DATES]. Any comments received, including names and addresses, will 
become part of the administrative record and may be made available to 
the public. Our practice is to make comments, including names, home 
addresses, home telephone numbers, and email addresses of respondents, 
available for public review. Individual respondents may request that we 
withhold their names and/or home addresses, etc., but if you wish us to 
consider withholding this information you must state this prominently 
at the beginning of your comments. In addition, you must present a 
rationale for withholding this information. This rationale must 
demonstrate that disclosure would constitute a clearly unwarranted 
invasion of privacy. Unsupported assertions will not meet this burden. 
In the absence of exceptional, documentable circumstances, this 
information will be released. We will always make submissions from 
organizations and businesses, and from individuals identifying 
themselves as representatives of or officials of organizations or 
businesses, available for public inspection in their entirety.

[[Page 10784]]

    The Service will evaluate the application, associated documents, 
and comments submitted to them to prepare a Record of Decision. A 
permit decision will be made no sooner than 30 days after the 
publication of the final EIS/EIR and completion of the Record of 
    This notice is provided pursuant to section 10(a) of the ESA and 
Service regulations for implementing NEPA, as amended (40 CFR 1506.6). 
We provide this notice in order to allow the public, agencies, or other 
organizations to review these documents.

    Dated: March 5, 2007.
Polly Wheeler,
Acting Deputy Manager, California/Nevada Operations Office, Sacramento, 
[FR Doc. E7-4252 Filed 3-8-07; 8:45 am]