[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Pages 74504-74506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30186]



Fish and Wildlife Service

[FWS-R8-ES-2012-N204; FF08E00000-FXES11120800000F2-123-F2]

Proposed Low-Effect Habitat Conservation Plan for the State-Route 
99/Cartmill Avenue Interchange Improvements Project, City of Tulare, 
Tulare County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; request for comment.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
received an application from the City of Tulare, Tulare County, 
California (applicant), for a 5-year incidental take permit for two 
species under the Endangered Species Act of 1973, as amended (Act). The 
application addresses the potential for ``take'' of two listed animals, 
the vernal pool fairy shrimp and the San Joaquin kit fox. The applicant 
would implement a conservation strategy program to avoid, minimize, and 
mitigate effects of the project's covered activities, as described in 
the applicant's low-effect habitat conservation plan (HCP). We request 
comments on the applicant's application and plan, and our 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 January 14, 2013.

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 Low-Effect Habitat 
Conservation Plan for the State Route 99/Cartmill Avenue Interchange 
Improvements Project, City of Tulare, Tulare County, California:
     U.S. Mail: Nina Bicknese, Conservation Planning Division, 
U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 
2800 Cottage Way, W-2605, Sacramento, CA 95825.
     In-Person Drop-off, Viewing, or Pickup: Call (916) 414-
6600 to make an appointment during regular business hours to drop off 
comments or view received comments at the address shown above.

FOR FURTHER INFORMATION CONTACT: Mike Thomas, Chief, Conservation 
Planning Division, or Eric Tattersall, Deputy Assistant Field 
Supervisor, at the address shown above or at (916) 414-6600 
(telephone). If you use a telecommunications device for the deaf, 
please call the Federal Information Relay Service at (800) 877-8339.


Availability of Documents

    You may obtain copies of the permit application, HCP, and EAS from 
the individuals in FOR FURTHER INFORMATION CONTACT. Copies of these 
documents are also available for public inspection, by appointment, 
during regular business hours, at the Sacramento Fish and Wildlife 
Office (see ADDRESSES).

Public Availability of Comments

    Before including your address, phone number, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--might 
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 prohibits taking of fish and wildlife species 
listed as endangered or threatened under section 4 of the Act. Under 
the Act, 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 
significant habitat modification or degradation that results in death 
or injury of listed 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 species 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 species, provided that 
the take that occurs is incidental to, but not the purpose of, an 
otherwise lawful activity. Regulations governing permits for endangered 
and threatened species are at 50 CFR 17.22 and 17.32, respectively.
    Section 10(a)(1)(B) of the Act contains provisions for issuing such 
incidental take permits to non-Federal entities for the take of 
endangered and threatened species, provided the following criteria are 
    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 HCP 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.
    The applicant seeks an incidental take permit for proposed covered 
activities within a 219-acre permit area surrounding the intersection 
of State Route 99 and Cartmill Avenue within the City of Tulare, Tulare 
County, California. The HCP does not include any unlisted animal 
species or unlisted plant species. The following two federally listed 
species will be included as covered species in the applicant's proposed 

 San Joaquin kit fox (Vulpes macrotis mutica) (endangered)
 Vernal pool fairy shrimp (Branchinecta lynchi) (threatened)

    For these covered species, the applicants would seek incidental 
take authorization. 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)).
    Activities proposed for coverage under the proposed incidental take 
permit (covered-activities) would be otherwise lawful activities that 
could occur consistent with the HCP, to include, but not be limited to:
     Widen and improve sections of existing roadway.
     Remove the existing Cartmill Avenue overpass, remove 
associated roadways and associated highway ramps, and dispose of those 
     Store equipment and supplies in a designated staging area.
     Construct a new Cartmill Avenue overpass, including a 
temporary structure (falsework). Construct new roadways and new highway 
ramps associated with the new overpass.

[[Page 74505]]

     Excavate seven new stormwater detention basins and dispose 
of excavated soil.
     Remove existing vegetation, including plant roots.
     Grade and re-contour ground, compact soil, and install 
road surfaces (paving).
     Install erosion control structures (such as silt fencing 
and barriers).
     Operate heavy equipment (including, but not limited to, 
pneumatic tools, scrapers, bulldozers, backhoes, heavy trucks, cement 
trucks, compactors, and water trucks.
     Control dust by watering soil surfaces.
     Excavate trenches to install traffic signals, lighting 
conduit, streetlights, and similar facilities.
     Sow native-plant species or other groundcover to prevent 
erosion and to restore areas disturbed by construction activities.
     Maintain and operate the completed project, including 
maintenance watering of any landscaping vegetation, future mowing of 
roadside vegetation, and future maintenance repairs to the constructed 
    The applicant's proposed project would improve the State Route 99/
Cartmill Avenue Interchange (Interchange) and correct nonstandard 
features of the existing Cartmill Avenue overcrossing. The new Cartmill 
Avenue overpass would provide 16.5 feet of vertical clearance over 
State Route 99, compared to the existing 15 feet, and provide space to 
accommodate any future widening of State Route 99. The approximately 
2,700-foot long overpass-section of Cartmill Avenue would be widened 
from two lanes (approximately 38-feet wide) to become a six-lane 
divided arterial (approximately 128-feet wide). The new Cartmill Avenue 
overpass would transition from six lanes to the existing two lanes in a 
400-foot section west of M Street, and in a 1,300-foot section east of 
the new Akers Street intersection/Tulare Irrigation District Canal 
crossing. The existing M Street intersection with Cartmill Avenue would 
be improved, and a portion of M Street would be reconstructed. An 
existing highway ramp in the southwest quadrant of the Interchange 
would be removed, realigned, and replaced with a new ramp. Three 
additional highway ramps would be constructed in the other Interchange 
quadrants. The existing frontage road (Road 100) in the northeast 
quadrant of the Interchange would be removed, and a new roadway (Akers 
Street) would be constructed in an area approximately 330 feet to the 
east of the existing road. Additional 12-inch-deep water detention 
basins would be excavated in each quadrant of the Interchange. The 
entire project would be constructed in a single phase.
    The applicant proposes to avoid, minimize, and mitigate the effects 
to the covered species associated with the covered activities by fully 
implementing the conservation strategy described in the HCP. Avoidance 
and minimization measures will include compliance with our January 2011 
document ``U.S. Fish and Wildlife Service Standard Recommendations for 
Protection of the Endangered San Joaquin Kit Fox Prior to or During 
Ground Disturbance.'' Other avoidance and minimization measures include 
but are not limited to:
     Install barrier fencing around the entire work area.
     Install barrier fences around seasonal pools and other 
sensitive areas.
     Install of erosion control measures around seasonal pools.
     Implement actions to avoid migratory birds and active 
     Conduct environmental awareness training for onsite 
     Conduct preconstruction surveys for kit fox and kit fox 
     Employ a qualified biological monitor to be on site during 
all initial ground-disturbing construction activities, to revisit the 
construction site at least weekly and assure that all avoidance and 
minimization measures are in good working order, and to prepare 
monitoring reports.
     The biological monitor will have the authority to stop 
work, if deemed necessary.
    The applicant proposes to compensate for covered-species effects 
that cannot be avoided by purchasing preservation credits at the 
Service-approved conservation banks discussed in the HCP.


    Our proposed action is approving the applicant's HCP and issuing an 
incidental take permit for the applicant's covered activities. As 
required by the Act, the applicant's HCP considers alternatives to the 
take expected under the proposed action. The HCP considers the 
environmental consequences of one alternative to the proposed action, 
the No-Action Alternative. Under the No-Action Alternative, we would 
not issue a permit; the applicant would not improve the State Route 99/
Cartmill Avenue Interchange and would not correct nonstandard features 
of the existing Cartmill Avenue overcrossing; project effects on 
covered-species habitat would not occur; and the applicant would not 
implement proposed mitigation measures. While this No-Action 
Alternative would avoid take of covered-species, it is considered 
infeasible because the applicant could not complete necessary traffic 
safety improvements or correct existing circulation, access, and 
capacity problems at the existing interchange.
    Under the Proposed-Action Alternative, we would issue an incidental 
take permit for the applicant's proposed project, which includes the 
covered activities described above. The Proposed-Action Alternative 
would permanently affect approximately 36.44 acres and temporarily 
affect approximately 12.24 acres of low-quality San Joaquin kit fox 
foraging and breeding habitat, and would permanently affect 0.071 acre 
of low-quality vernal pool fairy shrimp aquatic habitat. To mitigate 
for these effects, the applicant proposes to purchase preservation 
credits equal to 58.73 acres of high-quality kit fox habitat and 
purchase preservation credits equal to 0.213 acre of high-quality 
vernal pool habitat at two Service-approved conservation banks.

National Environmental Policy Act

    As described in our EAS, we have made the preliminary determination 
that approval of the proposed HCP and issuance of the permit would 
qualify as a categorical exclusion under NEPA (42 U.S.C. 4321-4347 et 
seq.), as provided by NEPA implementing regulations in the Code of 
Federal Regulations (40 CFR 1500.5(k), 1507.3(b)(2), 1508.4), by 
Department of Interior regulations (43 CFR 46.205, 46.210, 46.215), and 
by the Department of the Interior Manual (516 DM 3 and 516 DM 8). Our 
EAS found that the proposed HCP qualifies as a ``low-effect'' habitat 
conservation plan, as defined by our ``Habitat Conservation Planning 
and Incidental Take Permitting Process Handbook'' (November 1996). 
Determination of whether a habitat conservation plan qualifies as low-
effect is based on the following three criteria: (1) Implementation of 
the proposed HCP would result in minor or negligible effects on 
federally listed, proposed, or 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 HCP, considered together with the impacts of other past, 
present, and reasonably foreseeable 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

[[Page 74506]]

the final determination on whether to prepare an additional NEPA 
document on the proposed action.

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 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 subject 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 environmental issues that should be 
considered with regard to the proposed development and permit 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 HCP, 
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 
San Joaquin kit fox and the vernal pool fairy shrimp from the 
implementation of the covered activities described in the Low-Effect 
Habitat Conservation Plan for the Proposed State Route 99/Cartmill 
Avenue Interchange Improvements Project, City of Tulare, Tulare County, 
California. We will make the final permit decision no sooner than 
January 14, 2013.

    Dated: December 10, 2012.
Alexandra Pitts,
Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, 
[FR Doc. 2012-30186 Filed 12-13-12; 8:45 am]