[Federal Register: June 15, 2010 (Volume 75, Number 114)]
[Page 33822-33824]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

[FWS-R8-ES-2010-N107; 1112-0000-81420-F2]

Los Esteros Critical Energy Facility Low-Effect Habitat 
Conservation Plan for the Bay Checkerspot Butterfly and Serpentine 
Endemic Plant Species, Santa Clara County, CA

AGENCY: Fish and Wildlife Service, Interior.

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


SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from the Calpine Corporation (applicant) for a 50-year 
incidental take permit for five species under the Endangered Species 
Act of 1973, as amended (Act). The application addresses the potential 
for ``take'' of one federally listed animal and four federally listed 
plants. The applicant would implement a conservation program to 
minimize and mitigate the project activities, as described in the 
applicant's low-effect 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), also available for public review.

DATES: We must receive written comments on or before July 15, 2010.

ADDRESSES: Please address written comments to Mike Thomas, Chief, 
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: Mike Thomas, or Eric Tattersall, 
Deputy Assistant Field Supervisor/Division Chief, Conservation Planning 
and Recovery, at the address shown above or at (916) 414-6600 


Availability of Documents

    You may obtain copies of the permit application, plan, and EAS from 
the individuals in 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 

[[Page 33823]]

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 in the incidental take permit would receive 
assurances under our ``No Surprises'' regulations (50 CFR 17.22(b)(5) 
and 17.32(b)(5)).
    The applicant seeks an incidental take permit for indirect effects 
within 10,306 acres of serpentine grasslands associated with the 
operations and maintenance of the Los Esteros Critical Energy Facility 
(LECEF) located in Santa Clara County, California. The LECEF Phase 2 
would covert the existing facility into a combined-cycle natural gas-
fired generating facility by passing exhaust heat, normally released to 
the atmosphere, through a heat recovery steam generator. The applicant 
is requesting permits for take of one animal species federally listed 
as threatened: Bay checkerspot butterfly (Euphydryas editha bayensis) 
(butterfly). The plan also includes four plant species federally listed 
as endangered: Coyote ceanothus (Ceanothus ferrisae), Metcalf Canyon 
jewel-flower (Streptanthus albidus albidus), Santa Clara Valley dudleya 
(Dudleya setchellii), and Tiburon paintbrush (Castilleja affinis 
neglecta). Collectively, these five species are referred to as 
``Covered Species'' in the plan.
    The applicant owns and manages lands in Santa Clara County, 
California. Lands owned by the applicant include 34 acres of the Phase 
2 LECEF in the City of San Jose and 40 acres of serpentine grassland on 
Coyote Ridge adjacent to Coyote Creek Golf Drive and northwest of Waste 
Management's Kirby Canyon Recycling and Waste facility in the City of 
Morgan Hill, California.
    The following actions are proposed under the plan: Implementation 
and construction of the LECEF Phase 2, operations and maintenance of 
the Phase 2 combined-cycle facility for a period of 50 years, and 
implementation of monitoring and management of a 40-acre serpentine 
preserve; these actions are collectively referred to as the ``Covered 
Activities.'' The LECEF Phase 2 is located within a 34-acre parcel, 21 
acres previously developed under Phase 1 and 13 acres that will be used 
as staging and temporary parking during construction of Phase 2. There 
are no known threatened or endangered species or their habitats located 
within the 34-acre parcel. However, once the Phase 2 facility is 
completed, its operation is expected to result in indirect effects from 
nitrogen deposition within 10,306 acres of habitat for the Covered 
Species in Santa Clara County, California. Emissions from power plants, 
vehicles, and industrial development result in deposition of nitrogen 
compounds (such as nitrogen oxides, nitric acid, and ammonia) onto 
nutrient-poor serpentine soils. Enrichment of serpentine soils allows 
nonnative plants to outcompete native species, including the host 
plants for the Bay checkerspot butterfly and the four listed plants.
    The applicant proposes to avoid, minimize, and mitigate the effects 
to the Covered Species associated with the Covered Activities by fully 
implementing the plan. The following mitigation measures will be 
implemented: Establishment of a 40-acre serpentine preserve on Coyote 
Ridge; implementation of a grazing management plan to benefit the 
Covered Species; implementation of a monitoring plan for the Covered 
Species; establishment of a non-wasting endowment in the amount of 
$541,600 to provide funding for changed circumstances, monitoring, and 
management of the 40-acre preserve in perpetuity; and purchase of Bay 
Area Air Quality Management District pollution credits equivalent to 
27,945 tons/year for nitrogen deposition.


    Our proposed action is approving the applicant's plan and issuing 
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 the following four alternatives to the proposed action: 
No Action; Alternative Site Location; Alternative Project 
Configuration; and Alternative Technologies.
    Under the No Action alternative, we would not issue a permit, and 
the applicant would not initiate construction on Phase 2. The No Action 
alternative would result in the applicant violating the terms of a 
power sales agreement with the California Department of Water 
Resources, and the U.S. DataPort (DataPort) would obtain electricity 
from the existing electrical grid, which would conflict with the City 
of San Jose's California Environmental Quality Act decision for the 
DataPort to be electrically self-sufficient.
    Under the Alternative Site Location alternative, the LECEF Phase 2 
would be constructed in a different location; however, construction of 
Phase 2 anywhere within the same air shed would not avoid the indirect 
effects to listed species resulting from nitrogen deposition. Since the 
LECEF is being constructed to supply power to the DataPort, 
constructing the plant outside of the air shed would likely result in 
greater ground disturbance since construction would not take place 
within the footprint of the existing power plant. Additional impacts 
would occur as a result of connecting the DataPort with a more remote 
power plant, potentially resulting in additional effects to natural 
resources, including other listed species.
    Under the Alternative Projects Configuration alternative, 
alternative equipment would have been incorporated into the design of 
the project. However, the proposed project represents the latest 
generation of commercially demonstrated combustion and steam turbine 
technology and is believed to represent the most effective technology 
currently available in terms of highest power output and lowest 
emissions. Implementation of alternative equipment could result in less 
efficient energy production and additional air quality impacts.

[[Page 33824]]

    Under the Alternative Technologies alternative, waste heat would 
involve the export of processed steam, instead of the steam being 
converted to electricity through the use of a steam turbine under the 
proposed alternative. Export of processed steam would necessitate a 
nearby steam host. There are no steam hosts currently available near 
the existing LECEF Phase 1 site; therefore, a steam host would have to 
be constructed, resulting in additional impacts outside of the existing 
34-acre site.
    Under the proposed action alternative, we would issue an incidental 
take permit for the applicant's proposed project, which includes the 
activities described above and in more detail in the HCP. The proposed 
action alternative is not expected to result in the permanent loss of 
habitat for any of the Covered Species. The proposed project is 
expected to result in indirect effects to 10,306 acres of serpentine 
grassland. To mitigate these effects, the applicant proposes to 
permanently protect 40 acres of serpentine grassland on Coyote Ridge, 
implement a monitoring and management plan for the Covered Species, 
establish a non-wasting endowment, and purchase Bay Area Air Quality 
Management District pollution credits.

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 (42 U.S.C. 4321 et seq.), 
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 our 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.

Public Review

    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 we receive, 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 
Bay checkerspot butterfly, coyote ceanothus, Metcalf Canyon jewel-
flower, Santa Clara Valley dudleya, and Tiburon paintbrush 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.

    Dated: June 7, 2010.
Susan K. Moore,
Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, 
[FR Doc. 2010-14322 Filed 6-14-10; 8:45 am]