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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-ES-2010-N024; 1112-0000-81440-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability.

# SUMMARY:

                        We, the U.S. Fish and Wildlife Service (Service, us), have received from the California Department of Parks and Recreation (applicant) an application for an incidental take permit under the Endangered Species Act of 1973, as amended (Act). We are considering issuing a permit that would authorize the applicant's take of the Federally endangered Morro shoulderband snail (                        *Helminthoglypta walkeriana*) incidental to otherwise lawful activities that would result in the permanent loss of 0.2 acre of Morro shoulderband snail habitat within Morro Bay State Park, San Luis Obispo County, California. We invite comments from the public on the application, which includes a Habitat Conservation Plan (HCP) fully describing the proposed project and measures the applicant would undertake to minimize and mitigate anticipated take of the species. We also invite comments on our preliminary determination that the HCP qualifies as a “low-effect” plan, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. We explain the basis for this determination in our draft Environmental Action Statement and associated Low Effect Screening Form, both of which are also available for review.                    

# DATES:

To ensure consideration, please send your written comments by March 29, 2010.

# ADDRESSES:

                        You may download a copy of the permit application, plan, and related documents on the Internet at                         *http://www.fws.gov/​ventura,*                         or you may request documents by U.S. mail, e-mail, or phone (see below). Please address written comments to Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003. You may alternatively send comments by facsimile to (805) 644-3958.                    

# FOR FURTHER INFORMATION CONTACT:

Jen Lechuga, HCP Coordinator, at Ventura address above, or (805) 644-1766, extension 224 (telephone).

# SUPPLEMENTARY INFORMATION:

## Background

                    The Morro shoulderband snail was listed as endangered on December 15, 1994 (59 FR 64613). Section 9 of the Act (16 U.S.C. 1531*et seq.*) and our implementing Federal regulations in the Code of Federal Regulations (CFR) at 50 CFR 17 prohibit the “take” of fish or wildlife species listed as endangered or threatened. Take of listed fish or wildlife is defined under the Act as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1532). However, under limited circumstances, we issue permits to authorize incidental take (                    *i.e.,*                     take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity). Regulations governing incidental take permits for threatened and endangered species are at 50 CFR 17.32 and 17.22, respectively. The Act's take prohibitions do not apply to Federally listed plants on private lands unless such take would violate State law. In addition to meeting other criteria, an incidental take permit's proposed actions must not jeopardize the existence of Federally listed fish, wildlife, or plants.                

The applicant proposes the construction and use of a boardwalk, overlook area, and trail project within a 10-acre site at the Morro Bay State Park marina peninsula, San Luis Obispo County, California, that will meet Americans with Disabilities Act (ADA) accessibility guidelines. The 10-acre site contains a mixture of native and introduced plant species. Coastal dune scrub, the only native upland community, occupies the majority of the 10-acre permit area. Disturbed upland habitat is also present and includes illegal trails and areas dominated by nonnative plant species.

The proposed project would result in impacts to a total of 0.41 acre of habitat for the Morro shoulderband snail. Permanent impacts resulting from the construction of the trails, boardwalk, and viewing platforms would be 0.18 acre and 0.03 acre, respectively. Additionally, there would be temporary impacts to 0.2 acre. Both the permanent and temporary impacts are expected to result in take of Morro shoulderband snail.

The applicant proposes to implement measures to minimize and mitigate for the take of Morro shoulderband snails within the permit area. Minimization measures include: (1) Restriction of activities to the dry season (April 15-November 15); (2) implementation of training sessions for all construction and park personnel involved in construction of the project; (3) performance of preconstruction surveys prior to each day of activity involving ground disturbance or vegetation disturbance to construct the boardwalk and peninsula spur trail; (4) relocation of any living Morro shoulderband snails that are found during preconstruction surveys or during construction into adjacent suitable habitat; (5) installation of fencing to delineate work and non-work areas; and (6) use of hand tools to the maximum extent possible.

                    Mitigation for unavoidable take of Morro shoulderband snails would consist of the establishment and management of a permanent conservation area over approximately 9.6 acres adjacent to the ADA trail and boardwalk system, closure and restoration to native habitat of all volunteer trails and redundant trails in the project area, and nonnative plant species removal. The HCP also considers effects from covered activities on, as well as conservation measures for, the California seablite (                    *Suaeda californica*), a threatened plant species occurring in the estuarine habitat adjacent to the project area.                

                    In the proposed plan, the applicant considers three alternatives to the taking of listed species in the proposed project. The No Action Alternative would maintain current conditions, the project would not be implemented, and an incidental take permit application would not be submitted to the Service. The second alternative would involve a redesign of the Marina Peninsula Trail Project. Although a reduction in the development area would be possible on the property, it is anticipated that such a reduction would result in a trail                           ( print page 8736)                        configuration that would encourage the continued use and expansion of volunteer trails, thus continuing and expanding impacts to coastal scrub and salt marsh habitats. The third alternative would involve the relocation of the project site within the Morro Bay State Park. However, the proposed Marina Peninsula Trail project offers an opportunity to use a long stretch of existing disturbed ground, former maintenance road, and existing trails, all of which could be improved to meet accessible guidelines, limit the removal of existing habitat, and provide substantial protection and improvement of habitat for sensitive species.                

We are requesting comments on our preliminary determination that the applicant's proposal will have a minor or negligible effect on the species covered in the plan, and that the plan qualifies as a “low-effect” habitat conservation plan as defined by our Habitat Conservation Planning Handbook (November 1996). We base our determination that the plan qualifies as a low-effect plan on the following three criteria: (1) Implementation of the plan would result in minor or negligible effects on Federally listed, proposed, and candidate species and their habitats; (2) implementation of the 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. As more fully explained in our Environmental Action Statement and associated Low Effect Screening Form, the applicant's proposed plan qualifies as a “low-effect” plan for the following reasons:

(1) Approval of the HCP would result in minor or negligible effects on the Morro shoulderband snail and California seablite and their habitat. The Service does not anticipate significant direct or cumulative effects to the Morro shoulderband snail or California seablite resulting from the proposed Project.

(2) Approval of the HCP would not have adverse effects on unique geographic, historic, or cultural sites, or involve unique or unknown environmental risks.

(3) Approval of the HCP would not result in any cumulative or growth-inducing impacts and would not result in significant adverse effects on public health or safety.

(4) The project does not require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), or the Fish and Wildlife Coordination Act, nor does it threaten to violate a Federal, State, local, or Tribal law or requirement imposed for the protection of the environment.

(5) Approval of the HCP would not establish a precedent for future actions or represent a decision in principle about future actions with potentially significant environmental effects.

                    We, therefore, have made a preliminary determination that the approval of the HCP and incidental take permit application qualifies for a categorical exclusion under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321*et seq.*), as provided by the Department of the Interior Manual (516 DM 2 Appendix 1 and 516 DM 8). Based on our review of public comments that we receive in response to this notice, we may revise this preliminary determination.                

## Next Steps

                    We will evaluate the plan and comments we receive to determine whether the permit application meets the requirements of section 10(a) of the Act (16 U.S.C. 1531*et seq.*). If we determine that the application meets these requirements, we will issue the permit for incidental take of the Morro shoulderband snail. We will also evaluate whether issuance of a section 10(a)(1)(B) permit would comply with section 7 of the Act by conducting an intra-Service section 7 consultation. We will use the results of this consultation, in combination with the above findings, in our final analysis to determine whether or not to issue a permit. If the requirements are met, we will issue the permit to the applicant.                

## Public Comments

                    If you wish to comment on the permit application, plan, and associated documents, you may submit comments by any one of the methods in                     **ADDRESSES**                    .                

## Public Availability of Comments

Before including your address, phone number, e-mail 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. If you wish us to consider withholding this information you must state this prominently at the beginning of your comments. In addition, you must provide a rationale demonstrating and documenting that disclosure would constitute a clearly unwarranted invasion of privacy. 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. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, are available for public inspection in their entirety.

## Authority

                    We provide this notice under section 10(c) of the Act (16 U.S.C. 1531*et seq.*) and NEPA regulations (40 CFR 1506.6).                

Dated: February 19, 2010.

Diane K. Noda,

Field Supervisor, Ventura Fish and Wildlife Office.

[FR Doc. 2010-3850 Filed 2-24-10; 8:45 am]

BILLING CODE 4310-55-P