[Federal Register Volume 79, Number 75 (Friday, April 18, 2014)]
[Pages 21946-21948]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-08851]

[[Page 21946]]



Fish and Wildlife Service

[FWS-R8-ES-2014-N056; FF08E00000-FXES11120800000F2-145]

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability; receipt of permit application, proposed
habitat conservation plan; request for comment.


SUMMARY: We, the U. S. Fish and Wildlife Service (Service), have
received an application from the City of Santa Clara, doing business as
Silicon Valley Power (applicant), for a 30-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
listed animal and four listed plants. We request comments on the
applicant's application and HCP, and our preliminary determination that
the HCP 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: To ensure consideration, please send your written comments by
May 19, 2014. We will make the final permit decision no sooner than May
19, 2014.

ADDRESSES: Submitting Comments: Please address written comments to
Ellen McBride, Conservation Planning Division, Sacramento Fish and
Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825.
Alternatively, you may send comments by facsimile to (916) 414-6713.
    Reviewing Documents: You may obtain copies of the permit
application, HCP, and EAS from the individuals in FOR FURTHER
INFORMATION CONTACT, or from the Sacramento Fish and Wildlife Office
Web site at http://www.fws.gov/sacramento. Copies of these documents
are also available for public inspection, by appointment, during
regular business hours, at the Sacramento Fish and Wildlife Office.

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.



    We have received an application from the City of Santa Clara, doing
business as Silicon Valley Power (SVP; applicant), for a 30-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 listed animal, the Bay checkerspot butterfly, and
four listed plants: the Santa Clara Valley dudleya (Dudleya abramsii
ssp. setchellii), coyote ceanothus (Ceanothus ferrisae), Metcalf Canyon
jewelflower (Streptanthus albidus ssp. albidus), and Tiburon paintbrush
(Castilleja affinis ssp. neglecta). Below, we refer to all five
species, collectively the Covered Species. 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 (HCP). We request comments on the applicant's
application and HCP, and our preliminary determination that the HCP
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

Background Information

    Section 9 of the Act (16 U.S.C. 1531-1544 et seq.) and our
regulations in the Code of Federal Regulations (50 CFR 17) prohibit the
taking of fish and wildlife species listed as endangered or threatened
under section 4 of the Act. Take of federally listed fish or wildlife
is defined under the Act as to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect listed species, or attempt to
engage in such conduct. 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). 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). 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 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 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.
    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

Proposed Project

    The draft HCP addresses potential effects to the Covered Species
that may result from the proposed covered activities. The applicant
seeks incidental take authorization for covered activities within the
2.86-acre Don Von Raesfeld Pico Power Plant (DVR), which is located
west of the intersection of Lafayette Street and Duane Avenue and
immediately north of SVP's Kifer Receiving Station, Santa Clara County,
California. The following five federally listed species will be Covered
Species in the applicant's proposed HCP:
     Bay checkerspot butterfly (Euphydryas editha bayensis)
     Santa Clara Valley dudleya (Dudleya setchellii)
     Coyote ceanothus (Ceanothus ferrisae) (endangered)
     Metcalf Canyon jewelflower (Streptanthus albidus ssp.
albidus) (endangered)
     Tiburon paintbrush (Castilleja affinis ssp. neglecta)
    The applicant would seek incidental take authorization for these
five Covered Species and would receive assurances

[[Page 21947]]

under our ``No Surprises'' regulations (50 CFR 17.22(b)(5) and

Proposed Covered Activities

    The following actions are proposed as the ``Covered Activities''
under the HCP: Approximately 40 acres of serpentine habitat for the
covered species will be indirectly affected through nitrogen oxide
(NOX) deposition and NH3 emissions resulting from
pollution control processes. The applicant proposes to continue to
operate a 2.86-acre electric power plant, which is a natural gas-fired,
combined-cycle electric generating facility with two General Electric
LM-6000PC Spring combustion turbine generators, a single condensing
steam turbine generator, deaerating surface condenser, mechanical draft
plume-abated cooling tower, and associated support equipment. The plant
is rated at nominal net generating capacity of 122 megawatts (MW), with
the ability to peak fire at 147 MW. The plant has an emission-reduction
system, which includes water injection and a selective catalytic
reduction unit to control nitrogen oxides, and an oxidation catalyst to
control carbon monoxide. The power plant will not directly affect
serpentine species, but emissions from the power plant could result in
indirect effects. The applicant seeks a 30-year permit to cover the
deposition and emissions associated with the operations of this
proposed development within the 40 acres surrounding the development
site. The power plant is not expected to cause direct effects to
covered species or their habitat.

Proposed Mitigation Measures

    The applicant proposes to avoid, minimize, and mitigate the effects
to the covered species associated with the Covered Activities by fully
implementing the HCP. The following mitigation and minimization
measures will be implemented:
     Acquisition of and placing a conservation easement on 40
acres of serpentine habitat on the nearby DVR Ecological Preserve for
protection of the serpentine-endemic species;
     Purchase of Bay Area Air Quality Management District
(BAAQMD) air pollution credits in the amount of 43.3 tons for
     Population monitoring on the preserve site, including
adaptive management;
     Invasive weed management;
     Controlled grazing; and
     Vegetation monitoring.
    General minimization measures will include:
     Limiting vehicular access of the preserve to existing
paved roads; and
     Maintenance of all equipment for accessing the preserve to
avoid fluid leaks.

Proposed Action and Alternatives

    Our proposed action (see below) is approving the applicant's HCP
and issuance of an incidental take permit for the applicant's Covered
Activities. As required by the Act, the applicant's HCP considers
alternatives to the take under the proposed action. The HCP considers
the environmental consequences of one alternative to the proposed
action, the No Action Alternative, as well as alternatives for power
supplied to Silicon Valley Power's customers.
No-Action Alternative
    Under the No-Action Alternative, we would not issue an incidental
take permit, the applicant would cease operations of the power plant,
the project area would continue to experience nitrogen deposition from
vehicular use along nearby highways, and no take would occur for the
operation of the power plant. While the No-Action Alternative would
avoid take of covered species, it is inconsistent with one of the
primary objectives of Silicon Valley Power's program to provide
electrical power to its business customers and to replace the power
obtained through a long-term sales agreement that expired in 2005,
after the DVR came on line. In addition, the No-Action Alternative
could result in greater fuel consumption and air pollution in the
State, because older, less efficient plants with higher air emissions
would continue to generate power instead of being replaced with
cleaner, more efficient plants, such as the DVR. It also could result
in the transfer of the mitigation property, the DVR Ecological
Preserve, to a party that would fully develop the property without
maintaining any habitat or federally listed species on site. Also,
during limited availability of in-state generated electricity, imported
electrical energy has proven to be expensive and not always available.
Additionally, under the No-Action Alternative, the 40-acre DVR
Ecological Preserve for serpentine endemic species would not be
acquired or set up for management in perpetuity. For these reasons, the
No-Action Alternative has been rejected.
Power Supply Alternative
    Similarly, alternative routes for the natural gas pipeline,
electric transmission line, and waste water pipeline were also reviewed
and found either to be infeasible, to fail to avoid or minimize any
potential significant environmental effects, or to have the potential
to cause significant environmental effects that are otherwise avoided
or minimized by the DVR.
    Various alternative technologies, scaled to meet the DVR
objectives, with the technology of the DVR were compared. Technologies
examined were those principal electricity generation technologies that
do not burn natural gas: solar, wind, and biomass. Both solar and wind
generation result in the absence or reduction in air pollutant
emissions, visible plumes, and need for emissions control. Water
consumption for both wind and solar generation is substantially less
than for a natural, gas-fired plant because there is no thermal cooling
    However, solar and wind resources would require large land areas in
order to generate 122 MW of electricity. Specifically, central receiver
solar thermal projects require approximately 5 acres per megawatt;
therefore, 122 MW would require approximately 610 acres, or over 200
times the amount of land area taken by the DVR site and linear
facilities. Parabolic trough solar thermal technology requires similar
acreage per megawatt. Wind generation ``farms'' generally require
between 5 to 17 acres per megawatt, with 122 MW requiring between 610
and 2,074 acres. Additionally, solar and wind energy technologies
cannot provide full-time availability due to the natural intermittent
availability of the source.
    Although air emissions are significantly reduced or eliminated for
both wind and solar facilities, both can have significant visual
effects. Wind facilities can also affect birds and bats, depending on
the turbine technology, and solar facilities typically have associated
land disturbance that may affect other listed species.
    For biomass generation, a fuel source such as wood chips (the
preferred source) or agricultural waste is necessary. Biomass
facilities generate substantially greater quantities of air pollutant
emissions. In addition, biomass plants are typically sized to generate
less than 20 MW, which is substantially less than the capacity of the
122-MW DVR project. In order to generate 122 MW, six biomass facilities
each generating 20 MW would be required.
    Because of the typically lower efficiencies and intermittent
availability of alternative generation technologies, they do not
fulfill a basic objective of this plant: to provide power from a load-
following facility to meet the growing demands for reliable power
within the City of Santa Clara. Consequently, it has

[[Page 21948]]

been concluded that geothermal, hydroelectric, solar, wind, and biomass
technologies do not present feasible alternatives to the DVR.
    For the above reasons, the various alternatives to power delivery
for Silicon Valley Power's customers were rejected.
Proposed Action
    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 an estimated permanent loss through indirect effects to 40
acres of grassland habitat for the Bay checkerspot butterfly, Santa
Clara Valley dudleya, Metcalf Canyon jewelflower, Coyote ceanothus, and
Tiburon paintbrush. To mitigate for these effects, the applicant
proposes to protect, enhance, and manage in perpetuity 40 acres of
nearby 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 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, 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 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 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; and
    (5) Identification of any other environmental issues that should be
considered with regard to the proposed DVR operations and permit
    You may submit your comments and materials by one of the methods
listed above in ADDRESSES. Comments and materials we receive, as well
as supporting documentation we used in preparing the EAS, will be
available for public inspection by appointment, during normal business
hours, at our office (see FOR FURTHER INFORMATION CONTACT).

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.

Next Steps

    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
Bay checkerspot butterfly 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 Santa
Clara, Santa Clara County, California. We will make the final permit
decision no sooner than 30 days after publication of this notice in the
Federal Register.


    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 1500-1508, as well as in compliance with section 10(c) of the
Endangered Species Act (16 U.S.C. 1531 et seq.; Act).

    Dated: April 14, 2014.
Jennifer M. Norris,
Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento,
[FR Doc. 2014-08851 Filed 4-17-14; 8:45 am]