[Federal Register Volume 76, Number 244 (Tuesday, December 20, 2011)]
[Pages 78942-78944]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32494]



Fish and Wildlife Service

[FWS-R8-ES-2011-N243; FF08E00000-FXES11120800000F2-112]

Draft Environmental Impact Statement and Proposed Vernal Pool 
Habitat Conservation Plan for the City of San Diego, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of intent and announcement of a public meeting; request 
for comments.


SUMMARY: We, the Fish and Wildlife Service (Service), intend to prepare 
an environmental impact statement (EIS) under the National 
Environmental Policy Act (NEPA) of 1969, as amended, for the proposed 
Vernal Pool Habitat Conservation Plan (VPHCP) under development by the 
City of San Diego (City). The draft EIS will evaluate the impacts of 
several alternatives related to the VPHCP being prepared by the City in 
support of the City's anticipated application for an Endangered Species 
Act (ESA) permit for incidental take of seven federally listed vernal 
pool species, from activities associated with urban development 
activities. We also announce plans for a public scoping meeting and the 
opening of a public comment period. We request data, comments, new 
information, or suggestions from the public, other concerned 
governmental agencies, the scientific community, Tribes, industry, or 
any other interested party.

DATES: To ensure consideration, please send your written comments by 
February 16th, 2012.
    For more information, see ``Public Comments'' and ``Reasonable 
Accommodation'' under the SUPPLEMENTARY INFORMATION section.

ADDRESSES: To request further information or submit written comments, 
please use one of the following methods, and note that your information 
request or comment is in reference to the City of San Diego Vernal Pool 
     Fax: Attn: Jim Bartel, Field Supervisor, (760) 431-5902.
     U.S. Mail: Jim Bartel, Field Supervisor, Carlsbad Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley 
Road, Suite 101, Carlsbad, CA 92011.
     In-Person Drop-off: You may drop off comments during 
regular business hours at the above address.

Supervisor, by phone at (760) 431-9440, or by U.S. mail at the above 
address; or Jeanne Krosch, Senior Planner, City of San Diego, by phone 
at (619) 236-7225.

SUPPLEMENTARY INFORMATION: We publish this notice under the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.; 
NEPA), and its implementing regulations in the Code of Federal 
Regulations (CFR) at 40 CFR 1506.6, as well as in compliance with 
section 10(c) of the Endangered Species Act (16 U.S.C. 1531 et seq.; 
ESA). We intend to prepare a draft environmental impact statement to 
evaluate the impacts of several alternatives related to the potential 
issuance of an incidental take permit (ITP) to the City of San Diego, 
as well as impacts from implementation of the supporting habitat 
conservation plan. The EIS will be a joint document with an 
environmental impact report (EIR) prepared by the City under the 
California Environmental Quality Act (CEQA).
    The City proposes to develop a Vernal Pool HCP as part of their 
application for an ITP under section 10(a)(1)(B) of the ESA. The 
proposed VPHCP will include measures necessary to minimize and mitigate 
the impacts, to the maximum extent practicable, of potential proposed 
taking of federally listed species to be covered by the VPHCP, and the 
habitats upon which they depend, resulting from residential, 
commercial, and other development activities within the proposed plan 
    In addition to this notice, the City has publicly released a CEQA 
notice of preparation for its EIR via State Clearinghouse and local 
media. Please see http://www.sandiego.gov/development-services/industry/pdf/infobulletin/ib401.pdf for more information on the CEQA 
    The proposed VPHCP would establish the structure to integrate 
development and vernal pool conservation in the City.
    The proposed VPHCP would serve as a multiple-species HCP for the 
City in its application for an ITP under section 10(a)(1)(B) of the 
ESA. If the application is approved by the Service, the City would 
obtain authorization for the incidental take of certain threatened and 
endangered animal species (``covered species''). If the Federal permit 
is issued, the City could extend the permit authorization to proponents 
of development projects under the City's jurisdiction.


    Section 9 of the ESA prohibits taking of fish and wildlife species 
listed as endangered or threatened under section 4 of the Act. Under 
the ESA, 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. The term ``harm'' is defined in the regulations as 
including significant habitat modification or degradation that results 
in death or injury to listed wildlife species by significantly 
impairing essential behavioral patterns, including breeding, feeding, 
or sheltering (50 CFR 17.3). The term ``harass'' is defined in the 
regulations as to carry out actions that create the likelihood of 
injury to listed wildlife by annoying it to such an extent as to 
significantly disrupt normal behavioral patterns, which include, but 
are not limited to, breeding, feeding, or sheltering (50 CFR 17.3).
    However, under specified circumstances, the Service may issue 
permits that allow the take of federally listed wildlife species, 
provided that the take is incidental to, but not the purpose of, an 
otherwise lawful activity. Regulations governing permits for endangered 
and threatened wildlife species are 50 CFR 17.22 and 17.32, 
respectively. The ESA's take prohibitions do not apply to federally 
listed plants. However, other provisions of the Act prohibit the 
removal or destruction of plants on non-federal lands in violation of 
State law.
    Section 10(a)(1)(B) of the ESA contains provisions for issuing 
incidental take permits to non-Federal entities for the take of 
endangered and threatened wildlife species, provided the following 
criteria are met:
    1. The taking will be incidental;
    2. The applicants will, to the maximum extent practicable, minimize 
and mitigate the impact of such taking;
    3. The applicants will develop a proposed HCP and ensure that 
adequate funding for the plan will be provided;
    4. The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild; and
    5. The applicants will carry out any other measures that the 
Service may require as being necessary or appropriate for the purposes 
of the HCP.

[[Page 78943]]

    Thus, the purpose of issuing an ITP to the City would be to allow 
the City, under its local authority, to authorize development while 
conserving the covered species and their habitats. Implementation of a 
vernal pool species habitat conservation plan, rather than a species-
by-species or project-by-project approach, is intended to maximize the 
benefits of conservation measures for covered species and eliminate 
expensive and time-consuming efforts associated with processing 
individual ITPs for each project within the City's proposed plan area. 
The Service expects that the City will request ITP coverage for a 
period of 50 years.

Project Area

    The proposed VPHCP Planning Area covers approximately 206,124 acres 
of land in the City's jurisdiction, including City-owned lands in the 
unincorporated areas of Otay Lakes and Marron Valley, where development 
potentially may occur. The proposed VPHCP would cover non-Federal lands 
in the Planning Area. To facilitate timely and environmentally 
responsible development, the proposed VPHCP may focus on specific areas 
for development, such as Otay Mesa, Kearny Mesa, Mira Mesa, and Del Mar 

Alternatives in the Draft Environmental Impact Statement

    The proposed action presented in the draft EIS will be compared to 
the no-action alternative. The no-action alternative represents 
estimated future conditions assuming an ITP is not issued, to which the 
proposed action's estimated future conditions can be compared. Other 
alternatives, including their potential impacts, will also be addressed 
in the draft EIS.

No-Action Alternative

    Because future development activities are vital for the City, these 
activities would likely continue regardless of whether the proposed 
10(a)(1)(B) ITP is issued. Where a specific project would result in 
potential impacts to federally protected species within the proposed 
permit area that could not be avoided and a federal permit or federal 
funding is involved, i.e., there is a federal nexus for the project, 
the project proponent would address impacts in accordance with the an 
individual formal or informal consultation under Section 7 of the Act 
between the Federal authorizing agency and the Service. If no federal 
nexus exists for a proposed project that is likely to result in take of 
a listed vernal pool animal species, the project proponent would likely 
seek an individual section 10(a)(1)(B) ITP on a project-specific basis. 
Although future activities by the City or a private applicant would be 
similar to those covered by the VPHCP, not all activities would 
necessitate an incidental take permit or consultation with the Service. 
Thus, under the no-action alternative, the City and various project 
proponents would likely have to file numerous separate section 
10(a)(1)(B) permit applications over the 50-year project period. This 
activity-by-activity approach would be more time-consuming and less 
efficient than authorizing activities under an umbrella incidental take 
permit, and could result in a fragmented mitigation approach.

Proposed Alternative

    The proposed action is the issuance of an ITP to the City of San 
Diego covering impacts to seven vernal pool species resulting from 
development activities authorized by the City within the proposed 
Planning Area for a period of 50 years. The purpose of the Vernal Pool 
HCP would be to contribute to the conservation of the covered species 
while streamlining endangered species permitting for development 
projects. The Vernal Pool HCP, which must meet the requirements of 
section 10(a)(2)(A) of the ESA, would be developed and implemented by 
the City through its local regulatory and land use authorities. This 
alternative would allow for a comprehensive mitigation approach for 
unavoidable impacts and reduce permit processing times and efforts for 
the City and the Service.
    Potential impacts to covered species would be addressed through a 
conservation program that includes avoidance, minimization, mitigation, 
preservation, and restoration and enhancement of habitat for covered 
species by multiple components, such as reserve design and assembly 
processes, protection and management elements, funding assurances, 
monitoring, and adaptive management within the VPHCP planning area.
    The planning goals of the Vernal Pool HCP are anticipated to 
include the following:
     Provide for long-term conservation and management of 
Covered Species within the VPHCP area;
     Preserve, restore, and enhance vernal pool ecosystems that 
support Covered Species within the VPHCP area;
     Build on the City's general plans;
     Further identify the most appropriate locations within the 
VPHCP area for development projects, taking into account potential 
impacts to threatened and endangered species and their vernal pool 
     Provide a means to implement covered activities in a 
manner that complies with the ESA, NEPA, CEQA, and other relevant laws;
     Provide a basis for the issuance of take authorizations 
allowing the lawful take of covered species incidental to covered 
     Provide a comprehensive means to coordinate and 
standardize mitigation and compensation requirements for covered 
activities within the plan area;
     Provide a framework for a more efficient process by which 
proposed development projects with the plan area may obtain regulatory 
authorizations, and which results in greater conservation values than 
would a project-by-project, species-by-species review; and
     Identify and incorporate climate change adaptation 
research, management objectives, and policies into the final plan 
    More information on the proposed VPHCP is available on the Internet 
at http://www.sandiego.gov/planning/mscp/.

Covered Activities

    The covered activities under the VPHCP are expected to include 
residential, commercial, and industrial development; airports; roads; 
utilities; trails; and vernal pool restoration and enhancement.

Covered Species

    We anticipate that the following federally listed endangered 
wildlife species will be included as covered species in the City of San 
Diego's proposed VPHCP: the San Diego fairy shrimp (Branchinecta 
sandiegonensis) and the Riverside fairy shrimp (Streptocephalus 
woottonii). Take of federally listed plant species is not prohibited 
under the ESA, and authorization under an ESA ITP is not required. 
Section 9 of ESA does, however, prohibit the removal or malicious 
destruction of federally listed plants from areas under Federal 
jurisdiction and the removal or destruction of such plants in knowing 
violation of State law. In addition, section 7(a)(2) of the ESA 
prohibits Federal agencies from jeopardizing the continued existence of 
any listed plant or animal species, or destroying or adversely 
modifying the critical habitat of such species. The following federally 
listed plant species are anticipated to be included in the VPHCP in 
recognition of the conservation benefits to be provided for them under 
the plan and to be listed on the ITP for purposes of receiving 
mitigation assurances: The threatened spreading navarretia (Navarretia

[[Page 78944]]

fossalis), the endangered San Diego button celery (Eryngium aristulatum 
var. parishii), the endangered San Diego mesa mint (Pogogyne abramsii), 
the endangered California Orcutt grass (Orcuttia californica), and the 
endangered Otay mesa mint (Pogogyne nudiscula).

Conservation Alternative

    An expanded conservation alternative that would conserve additional 
vernal pool resources and provide increased opportunities for 
restoration and enhancement of vernal pool habitat will also be 
considered in the draft EIS.

Environmental Review and Next Steps

    The Service will conduct an environmental review to analyze the 
proposed action, along with other alternatives evaluated and the 
associated impacts of each. The draft EIS will be the basis for the 
impact evaluation for each covered species and the range of 
alternatives to be addressed. The draft EIS is expected to provide 
biological descriptions of the affected species and habitats, as well 
as the effects of the alternatives on other resources, such as 
vegetation, wetlands, wildlife, geology and soils, air quality, water 
resources, water quality, cultural resources, land use, recreation, 
water use, local economy, and environmental justice.
    Following completion of the environmental review, the Service will 
publish a notice of availability and a request for comment on the draft 
EIS and the City's permit application, which will include the proposed 
HCP. The draft EIS and proposed HCP are expected to be completed and 
available to the public in late summer 2012.

Public Comments

    We request data, comments, new information, or suggestions from the 
public, other concerned governmental agencies, the scientific 
community, Tribes, industry, or any other interested party on this 
notice. We will consider these comments in developing a draft EIS and 
in the development of a HCP and ITP. We particularly seek comments on 
the following:
    1. Biological information concerning the species;
    2. Relevant data concerning the species;
    3. Additional information concerning the range, distribution, 
population size, and population trends of the species;
    4. Current or planned activities in the planning area and their 
possible impacts on the species;
    5. The presence of archeological sites, buildings and structures, 
historic events, sacred and traditional areas, and other historic 
preservation concerns, which are required to be considered in project 
planning by the National Historic Preservation Act; and
    6. Identification of any other alternatives to the proposed action 
that should be analyzed in the draft EIS.
    7. Identification of any other environmental issues that should be 
considered in the draft EIS.
    You may submit your comments and materials by one of the methods 
listed in the ADDRESSES section.
    Comments can also be submitted to the City in response to their 
notice of EIR preparation under CEQA at DSDEAS@sandiego.gov, and 
comments will also be included as an appendix to the draft EIR/EIS.
    Comments and materials we receive, as well as supporting 
documentation we use in preparing the draft EIS, will be available for 
public inspection by appointment, during normal business hours, at our 

Public Availability of Comments

    Written comments we receive become part of the public record 
associated with this action. Before including your address, phone 
number, email address, or other personal identifying information in 
your comments, 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.


    We provide this notice under section 10 of the ESA (16 U.S.C. 1531 
et seq.) and by NEPA Regulations (40 CFR 1501.7, 40 CFR 1506.6, and 

Paul McKim,
Deputy Regional Director, Pacific Southwest Region, U.S. Fish and 
Wildlife Service, Sacramento, California.
 [FR Doc. 2011-32494 Filed 12-19-11; 8:45 am]