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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-ES-2009-N153; 1112-0000-80221-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability; receipt of application.

# SUMMARY:

We, the Fish and Wildlife Service (Service), have received an application from Pahrump 194, LLC (Applicant) for an incidental take permit (permit), under the Endangered Species Act of 1973, as amended. The requested 7-year permit would authorize the incidental take of the threatened desert tortoise (Gopherus agassizii) on 60 acres of habitat associated with the development of a shopping center complex within the town limits of Pahrump, Nevada.

We request comments on the permit application and on whether the proposed Habitat Conservation Plan (HCP) qualifies as a “low-effect” HCP, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA) of 1969, as amended. We explain the basis for this possible determination in a draft Environmental Action Statement (EAS), which is also available for public review.

# DATES:

We must receive comments in writing, no later than 5 p.m. on September 21, 2009.

# ADDRESSES:

Address comments to Robert D. Williams, State Supervisor, by U.S. mail at Fish and Wildlife Service, Nevada Fish and Wildlife Office, 4701 North Torrey Pines Drive, Las Vegas, NV 89130; or by fax at (702) 515-5231 (for further information and instruction on the reviewing and commenting process, see Public Review and Comment section below).

# FOR FURTHER INFORMATION CONTACT:

                        Jeri Krueger, Habitat Conservation Planning Coordinator, Fish and Wildlife Service (see                         **ADDRESSES**                        ), telephone (702) 515-5230.                    

# SUPPLEMENTARY INFORMATION:

## Availability of Documents

                    Individuals wishing copies of the application, proposed HCP, or EAS should contact us by telephone (see                     **FOR FURTHER INFORMATION CONTACT**                    ) or by letter (see                     **ADDRESSES**                    ). Copies of the subject documents are also available for public inspection during regular business hours at the Nevada Fish and Wildlife Office (see                     **ADDRESSES**                    ).                

## Background

                    Section 9 of the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531*et seq.*) and Federal regulations prohibit the “take” of a fish or wildlife species listed as endangered or threatened. Take of federally listed fish or wildlife is defined under section 3 of the Act as including to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in such conduct” (16 U.S.C. 1538). We may, under limited circumstances, issue permits to authorize “incidental take” of listed species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing permits for threatened species and endangered species, respectively, are at 50 CFR 17.32 and 50 CFR 17.22.                

The Applicant is seeking a permit with a 7-year term for the incidental take of the desert tortoise. The Applicant proposes to develop and carry out construction activities on 60 acres of land, associated with the development of the shopping center, improvement of adjacent roadways, installation of utility services, and construction of flood control facilities. The shopping center complex is estimated to occupy 300,000 square feet with a 175,000 square-foot retail anchor tenant. The shopping center will be constructed within the General Commercial Zoning District located on the east side of State Route 160 in the town of Pahrump. Construction is expected to take approximately 3 to 5 years to complete. The Applicant is requesting a 7-year incidental take permit to include the estimated 5-year construction period and an additional 2 years in the event that construction delays occur. The entire 60-acre parcel will be developed, resulting in the incidental take of any desert tortoises that may occupy the site and the permanent loss of 60 acres of desert tortoise habitat.

                    To minimize and mitigate adverse effects to desert tortoise from the loss of                           ( print page 42111)                        60 acres of desert tortoise habitat, the Applicant proposes to: (1) Survey for and remove all tortoises from the project site prior to surface disturbing activities; (2) install a temporary fence during construction activities to ensure tortoises do not gain access to the project site and wander into harm's way; (3) ensure trash and food items are disposed of properly to avoid attracting predators; (4) present a desert tortoise awareness program to all construction workers on the site; and (5) provide funding in the amount of $550 per acre of habitat disturbed to the Desert Tortoise Conservation Center in Clark County, Nevada, to support development and implementation of conservation and recovery actions for the tortoise under the guidance of the Service's Desert Tortoise Recovery Office in Reno, Nevada.                

Approval of the HCP may qualify as a categorical exclusion under NEPA, as provided by the Departmental Manual (516 DM 2 Appendix 1 and 516 DM 8) and as a “low-effect” plan as defined in the Habitat Conservation Planning Handbook (Service, November, 1996). Determination of low-effect HCPs is based upon the plan having: Minor or negligible effects on federally listed, proposed, or candidate species and their habitats; minor or negligible effects on other environmental values or resources; and impacts that, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to the environmental values or resources which would be considered significant. If it is found to qualify as a low-effect HCP, further NEPA documentation would not be required.

## Public Review and Comment

                    If you wish to comment on the permit application, draft EAS, or proposed HCP, you may submit your comments to the address listed in the                     **ADDRESSES**                     section of this document. We will evaluate this permit application, associated documents, and comments we receive to determine whether the permit application meets the requirements of section 10(a) of the Act and NEPA regulations. Before including your address, phone number, e-mail 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. If we determine that the requirements are met, we will issue an incidental take permit under section 10(a)(1)(B) of the Act to the Applicant for take of the desert tortoise, incidental to otherwise lawful activities in accordance with the terms of the permit. We will not make our final decision until after the end of the 30-day comment period and will fully consider all comments we receive during the comment period.                

## Authority

We provide this notice under section 10(c) of the Act and NEPA implementing regulations at 40 CFR 1506.6.

Dated: August 14, 2009.

Robert D. Williams,

State Supervisor, Nevada Fish and Wildlife Office, Reno, Nevada.

[FR Doc. E9-20053 Filed 8-19-09; 8:45 am]

BILLING CODE 4310-55-P