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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-ES-2010-N224; 80220-1112-0000-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of intent to prepare an Environmental Impact Statement and conduct public scoping.

# SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), intend to prepare an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA), regarding an expected application from the Orange County Transportation Authority (OCTA), for an incidental take permit (permit) authorizing incidental take of federally threatened and endangered wildlife species under the Endangered Species Act of 1973, as amended (ESA). We and OCTA intend to gather information necessary to prepare a joint Environmental Impact Report (EIR)/EIS for the Measure M2 (M2) Natural Community Conservation Plan/Habitat Conservation Plan/Master Streambed Alteration Agreement (NCCP/HCP/MSAA). We are furnishing this notice to announce the initiation of a public scoping period, during which we invite other agencies, Tribes, and the public to submit written comments providing suggestions and information on the scope of issues and alternatives to be addressed in the EIS.

# DATES:

Please send written comments on or before January 3, 2011. We will hold a public scoping meeting on Wednesday, December 15, 2010, from 5 p.m. to 7 p.m.

# ADDRESSES:

*Comments:*                         Please send written comments to Mr. James A. Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92011. Alternatively, you may submit comments by fax to (707) 822-8411. Comments we receive will be available for public inspection, by appointment, during normal business hours (Monday through Friday, 8 a.m. to 4:30 p.m.) at the above address.                    

*Meeting:*                         The public scoping meeting will be held at the Orange County Transportation Authority, 550 South Main Street, Conference Room 103/104, Orange, CA 92863.                    

# FOR FURTHER INFORMATION CONTACT:

                        Jonathan Snyder, Division Chief, Carlsbad Fish and Wildlife Office, at the address above; by telephone at (760) 431-9440 extension 307; or by e-mail at                         *jonathan_d_snyder@fws.gov.*

# SUPPLEMENTARY INFORMATION:

OCTA is preparing a habitat conservation plan (HCP) and an application for a permit related to freeway improvements in Orange County, California. OCTA is proposing to cover 22 species in the HCP. The purpose of the HCP is to provide protection to natural communities and sensitive species within the jurisdictional boundaries of Orange County, and to mitigation for the impacts on threatened and endangered and other sensitive species for 13 planned freeway improvement projects over 30 years.

## Background

                    Section 9 of the ESA (16 U.S.C. 1531*et seq.*) and Federal regulations prohibit the “take” of a fish or wildlife species listed as endangered or threatened. Under the ESA, the following activities are defined as take: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed wildlife species, or attempt to engage in such conduct (16 U.S.C. 1532). However, under section 10(a)(1)(B) of the ESA, permits may be issued to authorize “incidental take” of listed wildlife species. Incidental take is defined by the ESA as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 50 CFR 17.32, respectively.                

                    Section 10 of the ESA specifies the requirements for the issuance of                           ( print page 74741)                        incidental take permits to non-Federal entities. Any proposed take must be incidental to otherwise lawful activities and cannot appreciably reduce the likelihood of the survival and recovery of the species in the wild. The impacts of such take must also be minimized and mitigated to the maximum extent practicable. To obtain an incidental take permit, an applicant must prepare an HCP describing the impacts that will likely result from the proposed taking, the measures for minimizing and mitigating the impacts of the take, the funding available to implement such measures, alternatives to the taking, and the reason why such alternatives are not being implemented.                

Take of listed plant species is not prohibited under the ESA, and authorization under an ESA section 10 permit is not required. Plant species are proposed to be included on the OCTA permit in recognition of the conservation benefits provided for them under the HCP. All species included on the permit (“Covered Species”) would receive assurances under the Service's “No Surprises” regulation (50 CFR 17.22(b)(5) and 17.32(b)(5)).).

The proposed HCP will serve as an application for the issuance of take authorizations by the Service to OCTA pursuant to section 10(a)(1)(B) of the ESA. The HCP will set forth a uniform and systematic conservation strategy that ensures that impacts to Covered Species and their habitats from activities covered by the HCP (“Covered Activities”) are minimized and mitigated to the maximum extent practicable. The plan area for the HCP includes all of Orange County (about 798 square miles, or 510,720 acres), and the permit may allow take of Covered Wildlife Species resulting from Covered Activities anywhere in the plan area.

The HCP will be prepared to conserve the Covered Species and their natural habitats within Orange County for future generations. The HCP will address Covered Activities throughout Orange County that allow for freeway improvements while at the same time protecting the natural communities within the County.

Covered Activities in the HCP will consist of 13 freeway improvement projects in Orange County, including improvements to portions of I-5, I-405, I-605, SR-22, SR-55, SR-57, and SR-91.

Potential impacts to Covered Species will be addressed through a mitigation program that includes conservation and restoration of habitats for Covered Species in Orange County. Five percent of the Measure M2 revenue collected for the freeway projects will be allocated to the mitigation program. Habitat conservation and restoration projects appropriate to offset project-related impacts will be selected by OCTA in close coordination with the Service, California Department of Fish and Game, and California Department of Transportation.

                    Currently, OCTA is proposing to cover 17 (4 listed and 13 unlisted) animal species and 5 plant species (1 listed and 4 unlisted) for 30 years, with the opportunity to renew the permit for an additional 30 years. Listed species proposed to be included are: (1) The endangered southwestern willow flycatcher (                    *Empidonax trailii extimus*), (2) the threatened coastal California gnatcatcher (Polioptila californica californica), (3) the endangered least Bell's vireo (                    *Vireo bellii pusillus*), (4) the threatened Santa Ana sucker (                    *Catostomus santaanae*), and (5) the endangered Braunton's milk-vetch (                    *Astragulus brauntonii*).                

                    The unlisted species proposed to be included are: (1) Coulter's matilija poppy (                    *Romneya coulteri*), (2) intermediate mariposa lily (                    *Calochortus weedii var.**intermedius*), (3) many stemmed dudleya (                    *Dudleya multicaulis*), (4) southern tarplant (                    *Centromadia parryi***                     ssp.                     *australis*), (5) southern pacific pond turtle (                    *Clemmys marmorata*), (6) San Diego horned lizard (                    *Phrynosoma coronatum blainvillei*), (7) orange throated whiptail lizard (                    *Cnemidophorus hyperythrus beldingi*), (8) red diamond rattlesnake (                    *Crotalus exsul*), (9) coastal cactus wren (                    *Campylorhynchus brunneicapillus cousei*), (10) coastal rufous-crowned sparrow (                    *Aimophila ruficeps*), (11) arroyo chub (                    *Gila orcuttii*), (12) bobcat (                    *Lynx rufus*), (13) mountain lion (                    *Felis concolor*), (14) pallid bat (                    *Antrozous pallidus*), (15) small-footed myotis (                    *Myotis cilioabrum*), (16) long-eared myotis (                    *Myotis evotis*), and (17) Yuma myotis (                    *Myotis yumanensis*).                

## Environmental Impact Statement

Before deciding whether to issue permit, we will prepare a draft EIS to analyze the environmental impacts associated with the issuance of the requested permit and the implementation of the HCP by OCTA. The EIS will be prepared in compliance with NEPA under the supervision of the Service, which will be responsible for the scope and content of the document. The EIS will consider the proposed action, the issuance of a section 10(a)(1)(B) permit under the ESA, No Action (no permit), and a reasonable range of alternatives. A detailed description of the impacts of the proposed action and each alternative will be included in the EIS.

The proposed action and alternatives will be evaluated against the No Action alternative, which assumes that no permit will be issued. Several alternatives will be considered and analyzed, representing varying levels of conservation and impacts. The alternatives to be considered for analysis in the EIS may include: Variations in the scope of covered activities; variations in the location, amount, and type of conservation; variations in permit duration; or a combination of these elements. The EIS will also identify potentially significant direct, indirect, and cumulative impacts on biological resources, land use, air quality, water quality, water resources, socioeconomics, and other environmental issues that could occur with the implementation of the proposed action and alternatives. For all potentially significant impacts, the EIS will identify avoidance, minimization, and mitigation measures to reduce these impacts, where feasible, to a level below significance.

## Public Comments

                    Please direct any comments to the Service contact listed above in the                     **ADDRESSES**                     section, and any questions to the Service contact listed in the                     **FOR FURTHER INFORMATION CONTACT**                     section. All comments and materials we receive, including names and addresses, will become part of the administrative record and may be released to the public. Before including your address, phone number, email 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. This notice is provided under section 10(a) of the ESA and Service regulations for implementing NEPA (40 CFR 1506.6).                

Dated: November 24, 2010.

Margaret Kolar,

Acting Deputy Regional Director, Pacific Southwest Region, Sacramento, California. 

[FR Doc. 2010-30202 Filed 11-30-10; 8:45 am]

BILLING CODE 4310-55-P