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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-2008-N0289; 1112-0000-80221-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability and receipt of application.

# SUMMARY:

This notice announces the availability of the draft Tehachapi Uplands Multiple Species Habitat Conservation Plan (MSHCP), draft Implementing Agreement (IA), and draft Environmental Impact Statement (EIS) for public review and comment. We, the Fish and Wildlife Service (Service), are considering the issuance of a 50-year incidental take permit (permit) for 27 species in response to receipt of an application prepared by Tejon Ranch Corporation (Tejon or Applicant) pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The permit is needed because take of species could occur within 141,886 acres of covered lands on the Tejon Ranch as the result of on-going ranch activities and approximately 5,533 acres of mountain resort and other development within and adjacent to the Interstate 5 corridor and Lebec community in Kern County, California. The MSHCP proposes a conservation strategy to minimize and mitigate to the maximum extent practicable any impacts that could occur to covered species as the result of the covered activities.

# DATES:

Written comments must be received on or before May 5, 2009.

# ADDRESSES:

                        Written comments may be submitted to Mary Grim, Section 10 Program Coordinator, U.S. Fish and Wildlife Service, 2800 Cottage Way, W-2605, Sacramento, CA 95825. Comments may also be sent by e-mail to                         *fw8tumshcp@fws.gov*.                    

# FOR FURTHER INFORMATION CONTACT:

Steve Kirkland, U.S. Fish and Wildlife Service, at 805-644-1766.

# SUPPLEMENTARY INFORMATION:

## Availability of Documents

                    Individuals wishing to receive copies of the application, draft HCP, draft EIS, and draft IA, should contact the Service by telephone (see                     **FOR FURTHER INFORMATION CONTACT**                    ). Copies of the subject documents are also available for public inspection during regular business hours at the Ventura Fish and Wildlife Office [see                     **FOR FURTHER INFORMATION CONTACT**                    ], and may be downloaded from the Ventura Fish and Wildlife Office Web site at:                     *http://www.fws.gov/​ventura/​*.                

## Background

                    Section 9 of the Act and Federal regulations prohibit the “take” of wildlife species listed as endangered or threatened (16 U.S.C. 1538). The Act defines the term “take” as: to harass,                           ( print page 6051)                        harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed species, or to attempt to engage in such conduct (16 U.S.C. 1532). Harm includes significant habitat modification or degradation that actually kills or injures listed wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering [50 CFR 17.3(c)]. Pursuant to section 10(a)(1)(B) of the Act, the Service may issue permits to authorize “incidental take” of listed animal 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.                

Although take of listed plant species is not prohibited under the Act, and therefore cannot be authorized by an incidental take permit, plant species may be included on a permit in recognition of the conservation benefits provided to them by a habitat conservation plan. All species included on an incidental take permit would receive assurances under the Service's “No Surprises” regulation [50 CFR 17.22(b)(5) and 17.32(b)(5)].

We have received an application for an incidental take permit covering 27 listed and unlisted species that may be taken or otherwise affected by on-going ranch activities and future low density residential and commercial development activities on a portion of the Tejon Ranch. The potential impacts of take that could result from such covered activities would be avoided, minimized and mitigated as described in the Tehachapi Uplands Multiple Species Habitat Conservation Plan (plan) submitted as part of the incidental take permit application by Tejon. The Applicant has prepared the plan to satisfy the requirements for a section 10(a)(1)(B) permit under the Act.

The Applicant seeks a 50-year incidental take permit for covered activities within 141,886 acres of covered lands on Tejon Ranch lands in Kern County, California. Activities covered by the permit would include ongoing activities that have historically occurred at the Ranch, such as grazing and film production, as well as planned future community development of approximately 5,533 acres within and adjacent to the Interstate-5 corridor in the Tejon Mountain Village Planning Area and the Lebec/Existing Headquarters area, and take minimization, mitigation and conservation measures provided under the MSHCP. The permit would not cover hunting or mineral extraction.

                    Species proposed for coverage in the MSHCP are species that are currently listed as federally threatened or endangered or have the potential to become listed during the term of the permit and have some likelihood to occur within the plan area. Several of the species proposed for coverage are also listed under the California Endangered Species Act or identified as Fully Protected species or species of special concern under state law. Should any of the unlisted covered wildlife species become listed under the Act during the term of the permit, take authorization for those species would become effective upon listing. Twenty-one animal species and six plant species are known or have the potential to occur within the plan area and are proposed to be covered by the permit (Covered Species). The permit would include the following federally listed animal species: California condor (                    *Gymnogyps californianus*                    —federally listed as endangered and state listed as endangered and fully protected), least Bell's vireo (                    *Vireo bellii pusillus*                    —federally and state listed as endangered), southwestern willow flycatcher (                    *Empidonax traillii extimus*                    —federally and state listed as endangered), and Valley elderberry longhorn beetle (                    *Democerus californicus dimorphus*                    —federally listed as threatened). The permit would also include the following species currently unlisted under the Act: Western yellow-billed cuckoo (                    *Coccyzus americanus occidentalis*                    —federal candidate for listing and state listed as endangered); Tehachapi slender salamander (                    *Batrachoseps stebbinsi*                    —state listed as threatened), bald eagle (                    *Haliaeetus leucocephalus*                    —state listed as endangered), American peregrine falcon (                    *Falco peregrinus anatum*                    —state listed as endangered and fully protected), little willow flycatcher (                    *Empidonax traillii brewsteri*                    —state listed as endangered), golden eagle (                    *Aquila chrysaetos*                    —state species of special concern and fully protected), white-tailed kite (                    *Elanus leucurus*                    —state fully protected), ringtail (                    *Bassariscus astutus*                    —state fully protected), tricolored blackbird (                    *Agelaius tricolor*                    —state species of concern), Tehachapi pocket mouse (                    *Perognathus alticola inexpectatus*                    —state species of concern), burrowing owl (                    *Athene cunicularia*                    —state species of concern), yellow-blotched salamander (                    *Ensatina eschscholtzii croceater*                    —state species of concern), western spadefoot (                    *Spea hammondii*                    —state species of concern), purple martin (                    *Progne subis*                    —state species of concern), yellow warbler (                    *Dendroica petechia brewsteri*                    —state species of concern), coast horned lizard (                    *Phrynosoma coronatum*                     (both                     *frontale*                     and                     *blainvillii*                     populations)—state species of concern), two-striped garter snake (                    *Thamnophis hammondii*                    —state species of concern), round-leaved filaree (                    *Erodium macrophyllum*), Fort Tejon woolly sunflower (                    *Eriophyllum lanatum*                     var.                     *hallii*), Kusche's sandwort (                    *Arenaria macradenia*                     var.                     *kuschei*), Tehachapi buckwheat (                    *Eriogonum callistum*), striped adobe lily (                    *Fritillaria striata*                    —state listed as threatened), and Tejon poppy (                    *Eschscholzia lemmonii*                     ssp.                     *kernensis*).                

                    The MSHCP includes a conservation strategy intended to avoid, minimize and mitigate to the maximum extent practicable any impacts that would occur to covered species as the result of the covered activities. Under the plan, and consistent with the Tejon Ranch Conservation and Land Use Agreement between Tejon and the Sierra Club, National Audubon Society, Natural Resources Defense Council, Endangered Habitats League, and Planning and Conservation League, no land development would be allowed within approximately 93,522 acres of Covered Lands, including the approximately 37,100-acre Tunis and Winters ridge area, which is designated as the Condor Study Area under the plan and is the area of the ranch most likely to be frequented by condors. An additional 23,001 acres would be preserved as open space within the Tejon Mountain Village planning area, resulting in the permanent conservation of approximately 82 percent of the Covered Lands (MSHCP Mitigation Lands). Upon initiation of construction of the Tejon Mountain Village development, the MSCHP requires that the MSHCP Mitigation Lands be permanently protected by phased recordation of conservation easements or equivalent legal restrictions over all such lands by the end of the permit term. The MSCHP also requires implementation of general and species-specific take avoidance, minimization and mitigation measures to reduce potential impacts to the covered species. With regard to the California condor, the plan requires the ongoing monitoring of covered activities by a qualified biologist to reduce the potential for any human/condor interactions and the permanent enforcement of covenants, conditions and restrictions on residential development to minimize any impacts to condors. The plan also provides funding for condor capture, care and relocation in the unlikely event that a condor becomes habituated to human activities and includes a                           ( print page 6052)                        supplemental feeding program for condors. No lethal take of condors would be authorized under the permit.                 

## National Environmental Policy Act Compliance

The Service's proposed issuance of an incidental take permit is a federal action and triggers the need for compliance with the National Environmental Policy Act (NEPA). The Service has prepared a draft EIS that evaluates the impacts of proposed issuance of the permit and implementation of the MSHCP, and also evaluates the impacts of a reasonable range of alternatives.

The draft EIS analyzes three alternatives in addition to the proposed MSHCP, summarized above. The Service has identified the proposed MSHCP as the Preferred Alternative. Additional alternatives are described below.

*No Action/No MSHCP Alternative:*                     The No Action/No MSHCP Alternative allows for development in areas where the Service believes that no take of federally listed species is likely to occur and thus no ITP is required. The No Action/No MSHCP Alternative generally includes ongoing Ranch uses as well as development of the Covered Lands that could occur consistent with the Kern County General Plan—Land Use Designations on the approximately 56,922 acres of the Covered Lands that are outside of the CSA and a two-mile buffer area around the CSA. This Alternative provides for development of up to 5,897 residential units and 6,512,200 square feet of commercial space.                

*Condor HCP Alternative:*                     The Condor HCP Alternative would result in the issuance of an ITP covering only the California condor. No development would occur within the CSA for the 50-year term of the ITP, but permanent conservation easements would not be recorded within the CSA or elsewhere within the Covered Lands. This alternative would not include the comprehensive protective measures that would apply to all of the Covered Species in the Proposed MSHCP Alternative. The Condor HCP Alternative would include the same type and density of development within the Tejon Mountain Village Plan area and Lebec/Headquarters area as is included in the Proposed MSHCP Alternative, but would also include development consistent with the Kern County General Plan—Land Use Designations in all other portions of the Covered Lands except for the CSA. This Alternative provides for development of up to 7,100 residential units and 4,940,710 square feet of commercial space development.                

*MSHCP General Plan Buildout Alternative:*                     The MSHCP General Plan Buildout Alternative would include issuance of an ITP for the five federally listed species identified above. Development in the locations, densities and intensities allowed under the current Kern County General Plan—Land Use Designations would be covered, except that no development would be allowed in the CSA during the term of the ITP. This Alternative provides for development of up to 8,752 residential units and 6,762,690 square feet of commercial space development.                

## Public Comments

                    If you wish to comment on the permit application, draft MSHCP, draft IA, or draft EIS, you may submit your comments to the address listed in the                     **ADDRESSES**                     section of this document. 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 may 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.                

The Service will evaluate the application, associated documents, and comments submitted to them to prepare a final EIS. A permit decision will be made no sooner than 30 days after the publication of the final EIS and completion of the Record of Decision.

This notice is provided pursuant to section 10(a) of the Act and pursuant to implementing regulations for NEPA (40 CFR 1506.6).

Dated: January 29, 2009.

Ken McDermond,

Deputy Regional Director, California and Nevada Region, Sacramento, California.

[FR Doc. E9-2303 Filed 2-3-09; 8:45 am]

BILLING CODE 4310-55-P