[Federal Register: May 16, 2008 (Volume 73, Number 96)]
[Page 28495-28497]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R8-ES-2008-N0082; 1112-0000-81420-F2]

East Bay Municipal Utility District Habitat Conservation Plan, 
East Bay Watershed Lands, Alameda and Contra Costa Counties, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability: Proposed low-effect habitat 
conservation plan; request for comment.


SUMMARY: The East Bay Municipal Utility District, Oakland (EBMUD or 
applicant) has applied to the Fish and Wildlife Service (Service) for a 
30-year incidental take permit for seven species pursuant to section 
10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act) (16 
U.S.C. 1531 et seq.). The application addresses the potential for 
``take'' of two listed animals, two listed plants, and three currently 
unlisted species. The applicant would implement a conservation program 
to minimize and mitigate the project activities, as described in the 
East Bay Municipal Utility District Low-Effect East Bay Habitat 
Conservation Plan (plan). We request comments on the applicant's 
application and plan, and the preliminary determination that the plan 
qualifies as a ``low-effect'' habitat conservation plan, eligible for a 
Categorical Exclusion under the National Environmental Policy Act of 
1969, as amended (NEPA). We discuss our basis for this determination in 
our Environmental Action Statement (EAS), which is also available for 
public review.

DATES: We must receive written comments on or before June 16, 2008.

ADDRESSES: Please address written comments to Sheila Larsen, 
Conservation Planning Branch, Fish and Wildlife Service, Sacramento 
Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 
95825. Alternatively, you may send comments by facsimile to (916) 414-

FOR FURTHER INFORMATION CONTACT: Sheila Larsen, or Eric Tattersall, 
Branch Chief, Conservation Planning Branch, at the address shown above 
or at 916-414-6600 (telephone).


Availability of Documents

    Copies of the permit application, plan, and EAS can be obtained 
from the individuals named above (see FOR FURTHER INFORMATION CONTACT). 
Copies of these documents are available for public inspection, by 
appointment, during regular business hours, at the Sacramento Fish and 
Wildlife Office (see ADDRESSES). Documents also are available for 
public inspection, during regular business hours, at the East Bay 
Municipal Utility District, Orinda, Natural Resources Department, 500 
San Pablo Dam Road, Orinda, CA 94563.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Background Information

    Section 9 of the Act (16 U.S.C. 1531 et seq.) and its implementing 
Federal regulations prohibit the ``take'' of fish or wildlife species 
listed as endangered or threatened. ``Take'' is defined under the Act 
to include the following activities: To harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture or collect listed animal species, or 
to attempt to engage in such conduct. However, under section 
10(a)(1)(B) of the Act, we 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 endangered and threatened species, respectively, are in the 
Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.
    Although take of listed plant species is not prohibited under the 
Act, 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 the incidental take permit would receive 
assurances under the Services' ``No Surprises'' regulations (50 CFR 
17.22(b)(5) and 17.32(b)(5).
    The applicant seeks an incident take permit for covered activities 
within 28,200 acres of watershed lands owned

[[Page 28496]]

by EBMUD located in Contra Costa and Alameda Counties, California. 
EBMUD is requesting permits for take of two federally listed animal 
species, both listed as threatened: California red-legged frog (Rana 
aurora draytonii) and Alameda whipsnake (Masticophis lateralis 
euryxanthus). The two federally listed plant species, both listed as 
threatened, are Santa Cruz tarplant (Holocarpha macradenia) and pallid 
manzanita (Arctostaphylos pallida). The proposed covered species also 
include three wildlife species that are not currently listed under the 
Act--western pond turtle (Clemmys marmorata), pallid bat (Antrozous 
pallidus), and an unlisted resident population of rainbow trout (O. 
mykiss)--should these species be listed during the life of the permit. 
These rainbow trout are genetically identical to steelhead, a fish 
species federally listed as threatened. However, these trout are 
landlocked above Upper San Leandro Dam, and are considered rainbow 
trout, not steelhead. Collectively, all of these species are referred 
to as ``covered species'' in the plan.
    EBMUD owns and manages watershed lands in Alameda and Contra Costa 
Counties, located in the San Francisco Bay Area of California. These 
lands surround five reservoirs (Briones, San Pablo, Upper San Leandro, 
Chabot, and Lafayette) and a portion of one basin that does not have a 
reservoir (Pinole Valley). EBMUD reservoirs store drinking water and 
emergency water supplies for 1.3 million people residing in Alameda and 
Contra Costa Counties.
    Covered activities include the following watershed management and 
maintenance activities: A biodiversity program; forestry program; 
livestock grazing; agricultural operations; fire and fuels management; 
a trench spoils storage and removal program for the north and south 
watershed areas; maintenance activities related to recreational 
activities; and permitted watershed access on fire roads and designated 
trails. The implementation of mitigation measures such as creek 
restoration activities are also included as covered activities. The 
covered activities are described more fully in the plan, and additional 
information on EBMUD management activities can be found in their East 
Bay Watershed Master Plan, Fire Management Plan, and EBMUD's Range 
Resource Management Plan. EBMUD's watershed planning documents are 
available at this link: http://www.ebmud.com/water--&--environment/
environmental-- protection/.
    The applicant proposes to avoid, minimize, and mitigate the effects 
to the covered species associated with the covered activities by fully 
implementing the plan. To minimize and mitigate the impacts of the 
covered activities, the applicant will continue ongoing conservation 
activities and develop additional measures for the further protection 
of covered species, if necessary. Minimization measures will include, 
but are not limited to, seasonal restrictions on when work may be 
conducted, preconstruction surveys, and temporary removal of covered 
species from work areas. General mitigation measures will include 
restoration of disturbed habitat, improved grazing practices, 
maintenance of stockponds for California red-legged frogs and western 
pond turtles, riparian restoration, and conversion of non-native 
forests to native species.
    Santa Cruz tarplant is represented by a single experimental 
population that has not been observed for 10 years. It will be 
adaptively managed to encourage the re-establishment of this fire-
adapted species. Pallid manzanita will not be affected by covered 
activities, but competition with other species will be reduced through 
pruning of nearby vegetation. Rainbow trout habitat will be improved 
through revegetation of affected areas and fencing of creek corridors, 
and placement of spawning gravel to provide substrate if no spawning is 
observed on EBMUD lands. Coastal scrub that provides habitat for 
Alameda whipsnakes will be allowed to encroach into grassland so that 
the overall amount of this vegetation community does not vary by more 
than 1 percent due to covered activities. Mitigation measures for 
pallid bat include maintenance of moderate grazing levels; education of 
grazing lessees, signage on the known habitat, and installation of bat 
boxes adjacent to the currently used site.


    The Service's proposed action consists approving the applicant's 
plan and issuance of an incidental take permit for the applicant's 
Covered Activities. As required by the Act, the applicant's plan 
considers alternatives to the take under the proposed action. The plan 
considers the environmental consequences of one alternative to the 
proposed action, the No Action alternative. Under the No Action 
Alternative, no permit would be issued and projects would be reviewed 
and permitted on an individual basis. The proposed action alternative 
consists of issuance of the incidental take permit for the applicant's 
proposed project, which includes the activities described above.

National Environmental Policy Act

    As described in our EAS, we have made the preliminary determination 
that approval of the proposed plan and issuance of the permit would 
qualify as a categorical exclusion under NEPA, as provided by Federal 
regulations (40 CFR 1500, 5(k), 1507.3(b)(2), 1508.4) and the 
Department of the Interior Manual (516 DM 2 and 516 DM 8). Our EAS 
found that the proposed plan qualifies as a ``low-effect'' habitat 
conservation plan, as defined by the Service's 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 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 that would be considered significant. Based upon 
the preliminary determinations in the EAS, we do not intend to prepare 
further NEPA documentation. We will consider public comments when 
making the final determination on whether to prepare an additional NEPA 
document on the proposed action.
    We provide this notice pursuant to section 10(c) of the Act and the 
NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 
1506.6). We will evaluate the permit application, including the 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 the applicant for the incidental 
take of the California red-legged frog, Alameda whipsnake, western pond 
turtle, pallid bat, rainbow trout, Santa Cruz tarplant, and pallid 
manzanita, from the implementation of the covered activities described 
in the plan, or from mitigation conducted as part of this plan. We will 
make the final permit decision no sooner than 30 days after the date of 
this notice.

[[Page 28497]]

    Dated: May 12, 2008.
Susan K. Moore,
Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, 
 [FR Doc. E8-10994 Filed 5-15-08; 8:45 am]