[Federal Register Volume 77, Number 77 (Friday, April 20, 2012)]
[Pages 23745-23747]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9543]



Fish and Wildlife Service

[FWS-R8-ES-2012-N050; FF08E00000-FXES11120800000F2-123-F2]

Proposed Low-Effect Habitat Conservation Plan for the Bay 
Checkerspot Butterfly and Serpentine Grasslands, City of San Jose, 
Santa Clara County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability: request for comment.


SUMMARY: We, the U.S. Fish and Wildlife Service, have received an 
application from Hoa Cam Tieu (applicant) for a 3-year incidental take 
permit for three species under the Endangered Species Act of 1973, as 
amended (Act). The application

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addresses the potential for ``take'' of one listed animal, the Bay 
checkerspot butterfly; one listed plant, the Santa Clara Valley 
dudleya; and one nonlisted plant, the most beautiful jewelflower. 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 May 21, 2012.

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 Bay checkerspot butterfly and serpentine 
grasslands, Santa Clara County California:
     U.S. Mail: Ellen McBride, Conservation Planning Branch, 
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 this location: the above address.

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, plan, 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--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 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 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.
    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 incident take permit for covered activities 
within 1.4 acres of grassland associated with the construction of a 
single family residence in Santa Clara County, California. The 
following two federally listed species will be included as covered 
species in the applicants' proposed Plan:

     Bay checkerspot butterfly (Euphydryas editha bayensis) 
     Santa Clara Valley dudleya (Dudleya setchellii) 

    The Plan does not include any unlisted animal species, but would 
include one unlisted plant species:

     Most beautiful jewelflower (Streptanthus albidus ssp. 

Collectively, these species are referred to as ``covered species'' in 
the Plan. For these covered species, the applicants would seek 
incidental take authorization.
    Covered activities include the following:

     Grading and ground leveling
     Vegetation removal and planting, soil compaction, building 
construction, and use of heavy equipment (including, but not limited 
to, bulldozers, cement trucks, water trucks, and backhoes)
     Erosion control structures (such as silt fencing and 
     Dust control (such as watering surface soils)
     Construction of driveways
     Animal husbandry units
     Installation of utilities and irrigation systems
     Landscaping associated with all of the above activities 
and structures

The applicant proposes to avoid, minimize, and mitigate the effects to 
the covered species associated with the covered activities by fully 
implementing the Plan. Minimization measures will include, but are not 
limited to:

     An employee education program,
     Prior to initial grading, installation of permanent 
perimeter fencing and signage around the protected serpentine 
     Temporary construction fencing,
     Salvage of individual Santa Clara Valley dudleya prior to 
construction, and
     A deed restriction or conservation easement on 2.5 acres 
of the site for

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protection of serpentine habitat.
    General minimization measures will include:

     Limiting staging and work areas to the project site only, 
or to existing paved roads,
     Removal of all food-related trash every 3 days,
     Prohibiting pets from the project site during 
     Restricting ground disturbance to the period of July 1 
through November 30 (generally the dry season), unless we authorize 
otherwise, and
     Maintenance of all equipment to avoid fluid leaks.

    The applicant proposes to build a 0.60-acre residential home, which 
includes the single-family residence, detached garage, landscaped area, 
underground water line, and driveway. This development will be at the 
top of the property. There will be an additional septic system and 
septic leach field area of approximately 0.80 acre slightly west and 
downslope from the residence. Neither the residence nor the leach field 
area will directly affect serpentine species, but could result in 
indirect effects.


    Our proposed action is 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, we would not issue a 
permit; the applicant would not build the proposed single-family 
residence; the project area would continue to experience illegal off-
road vehicle use, illegal trash dumping, and trespassing; and no take 
would occur for the construction of the residence and its associated 
structures. For these reasons, the No-Action Alternative has been 
    Under the Proposed Action Alternative, we would issue an incidental 
take permit for the applicant's proposed project, which includes the 
activities described above. The Proposed Action Alternative would 
result in permanent loss of 1.40 acres of grassland habitat for the Bay 
checkerspot butterfly, Santa Clara Valley dudleya, and most beautiful 
jewelflower. To mitigate for these effects, the applicant proposes to 
protect, enhance, and manage in perpetuity 2.5 acres of on-site 
serpentine grassland.

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 part 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 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 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, Santa Clara Valley dudleya, and most 
beautiful jewelflower from the implementation of the covered activities 
described in the Low-Effect Habitat Conservation Plan for the Bay 
Checkerspot Butterfly and Serpentine Grasslands, City of San Jose, 
Santa Clara County, California. We will make the final permit decision 
no sooner than 30 days after the date of this notice.

    Dated: April 13, 2012.
Susan Moore,
Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, 
[FR Doc. 2012-9543 Filed 4-19-12; 8:45 am]