[Federal Register: October 20, 2008 (Volume 73, Number 203)]
[Page 62308-62310]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R8-ES-2008-0272; 81430-1112-0000-F2]

Proposed Otay Water District Low Effect Habitat Conservation Plan 
for the Quino Checkerspot Butterfly and Coastal California Gnatcatcher

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability.


SUMMARY: We, the U. S. Fish and Wildlife Service (Service), have 
received an application from the Otay Water District (Applicant) for a 
15-year incidental take permit for two 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 
federally endangered Quino checkerspot butterfly (Euphydryas editha 
quino) and the federally threatened coastal California gnatcatcher 
(Polioptila californica californica) associated with the operation and 
maintenance of the existing recycled water pipeline (the Otay Force 
Main) and its access road. A conservation program to mitigate for the 
project activities would be implemented by the Applicant as described 
in the Otay Water District Low Effect Habitat Conservation Plan for the 
Quino Checkerspot Butterfly and Coastal California Gnatcatcher (HCP), 
which would be implemented by the Applicant.
    We are requesting comments on the HCP and our 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 Low Effect Screening Form (Screening Form), which 
is also available for public review.

DATES: Written comments should be received on or before November 19, 

ADDRESSES: Comments should be addressed to the Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011. Written comments may 
be sent by facsimile to (760) 431-5901.

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

[[Page 62309]]


Availability of Documents

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


    Section 9 of the Act (16 U.S.C. 1531 et seq.) and its implementing 
Federal regulations prohibit the take of animal species listed as 
endangered or threatened. Take is defined under the Act as follows, to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or 
collect listed animal species, or to 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 Quino checkerspot 
butterfly and coastal California gnatcatcher during the life of the 
permit. These species are referred to as the ``Quino'' and 
``gnatcatcher,'' respectively, in the proposed HCP.
    The Applicant proposes to grade an existing access road located 
above the Otay Force Main (force main) pipeline and conduct other 
activities such as replacing valves along the pipeline, resurfacing 
damaged sections of the access road, clearing vegetation around work 
areas, and conducting routine inspections and maintenance of the valves 
and access road. Work areas and the access road are located within a 
30-foot easement on the San Diego National Wildlife Refuge. This 
easement was dedicated prior to the area being incorporated as a 
national wildlife refuge. All covered activities identified in the low-
effect HCP will occur within this easement and new impacts associated 
with covered activities will not appreciably exceed those currently 
taking place within the easement. Work areas will be maintained free of 
vegetation for the life of the permit, thus all initial vegetation 
clearing activities will be considered permanent impacts. Valve 
replacement and access road resurfacing will be conducted within the 
first year of HCP implementation. Activities in subsequent years will 
entail inspection of the force main, maintenance of work areas, and 
replacing defective or damaged values. Up to 1.28 acres of gnatcatcher 
and/or Quino habitat may be lost through implementation of the HCP over 
15 years.
    The Applicant proposes to mitigate the effects to Quino and 
gnatcatcher by fully implementing the HCP. The HCP emphasizes 
protection of habitat through impact avoidance and use of operational 
protocols, designed to avoid or minimize impacts to Quino and 
gnatcatcher. The Applicant will supplement these operational protocols, 
or avoidance and minimization measures, with habitat conservation and 
management in the San Miguel Habitat Management Area (HMA). To mitigate 
for permanent impacts, the Applicant will permanently conserve and 
manage high-quality Quino and gnatcatcher habitat by expending 
available credits from the San Miguel HMA.
    The Proposed Action consists of the issuance of an incidental take 
permit and implementation of the proposed HCP, which includes measures 
to mitigate impacts of the proposed activities on Quino and 
gnatcatcher. Five alternatives to the proposed action are considered in 
the HCP. Under the No Action Alternative, no permit would be issued and 
the Applicant would avoid take of Quino and gnatcatcher; however, 
avoidance of impacts would not be possible for some of the Applicant's 
activities, which would preclude some critical activities from being 
completed or require the Applicant to seek individual take 
authorizations. The other four alternatives address only implementing a 
single construction component of the proposed activities, eliminating 
an activity, or deferring the project until a larger, multi-agency 
multiple species habitat conservation plan could be developed. Most of 
these alternatives would provide a piecemeal approach to operating and 
maintaining the force main and would require additional consultation 
under the ESA. The proposed HCP provides more comprehensive coverage of 
necessary activities and conservation of Quino and gnatcatcher than 
either of the other alternatives. In addition, the proposed HCP would 
be more efficient and timely and would provide the Applicant with long-
term predictability concerning the nature of its operations for which 
incidental takings are permitted, avoiding potential facility-
compromising delays.
    The Service has made a preliminary determination that approval of 
the proposed HCP 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 HCP would 
result in minor or negligible effects on federally listed, proposed, 
and candidate species and their habitats; (2) Implementation of the 
proposed HCP would result in minor or negligible effects on other 
environmental values or resources; and (3) Impacts of the proposed HCP, 
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 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 

Public Review

    Written comments from interested parties are welcome to ensure that 
the issues of public concern related to the proposed action are 
identified. Comments and materials received will be available for 
public inspection, by appointment, during normal business hours at the 
office listed in the ADDRESSES section of this notice. All comments and 
materials received, including names and addresses, will become part of 
the administrative record and may be released to the public.
    Our practice is to make comments, including names, home addresses, 
home phone numbers, and e-mail 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 

[[Page 62310]]

documentable circumstances, this information will be released. We will 
always make submissions from organization or businesses, and from 
individuals identifying themselves as representatives of or officials 
of organizations or businesses, available for public inspection in 
their entirety.
    This notice is provided pursuant to section 10(c) of the Act. We 
will evaluate the permit application, the proposed HCP, 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 
Quino checkerspot butterfly and coastal California gnatcatcher 
associated with the operation and maintenance of the Otay Force Main 
within the San Diego National Wildlife Refuge located in San Diego 
County, California.

    Dated: October 14, 2008.
Jim A. Bartel,
Field Supervisor, Carlsbad Fish and Wildlife Office, Carlsbad, 
[FR Doc. E8-24882 Filed 10-17-08; 8:45 am]