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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice of availability. 

# SUMMARY:

                        This notice announces the receipt of an application from the Contra Costa County Flood Control and Water District (Flood Control District) and the availability of the final Environmental Impact Statement/Environmental Impact Report (EIS/EIR), East Contra Costa County Habitat Conservation Plan and Natural Community Conservation Plan (Plan), and Implementing Agreement (IA) for public review and comment. A notice of availability of the draft EIS/EIR was published in the                         **Federal Register**                         on September 2, 2005. The application described in that notice did not include the Flood Control District, which has since been added to the list of proposed permittees. The Fish and Wildlife Service (Service) is considering the proposed action of issuing a 30-year incidental take permit for 28 species in response to the application. The proposed permittees are: Contra Costa County (County); the cities of Brentwood, Clayton, Oakley, and Pittsburg (cities); the Flood Control District; East Bay Regional Park District; and an Implementing Entity to be formed by the County and the cities to implement certain aspects of the Plan. The proposed permit would authorize the incidental take of individual members of species listed under the ESA. The permit is needed because take of species could occur during proposed urban development activities, rural infrastructure projects, and preserve management activities within a 174,018-acre planning area located in eastern Contra Costa County, California.                     

# DATES:

The 30-day waiting period will end on April 9, 2007. Written comments should be received on or before this date. 

# ADDRESSES:

                        Send comments by mail or facsimile to: (1) Lori Rinek, Chief, Conservation Planning and Recovery Division, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-                              ( print page 10782)                            2605, Sacramento, California 95825; facsimile 916-414-6713; and/or (2) John Kopchik, Principal Planner, Contra Costa County Community Development Department, 651 Pine Street, Fourth Floor Northwest, Martinez, CA 94553; facsimile 925-335-1299.                     

# FOR FURTHER INFORMATION CONTACT:

(1) Sheila Larsen, Wildlife Biologist, or Lori Rinek, Chief, Conservation Planning and Recovery Division, Sacramento Fish and Wildlife Office, telephone 916-414-6600; or (2) John Kopchik, Principal Planner, Contra Costa County Community Development Department, telephone 925-335-1227. 

# SUPPLEMENTARY INFORMATION:

## Availability of Documents 

                    Copies of the Plan, IA and Final EIS/EIR are available for public review from 9 a.m. to 5 p.m., at the Contra Costa County Community Development Department (see                     **ADDRESSES**                    ). These documents also are available on the Association's Web site:                     *http://www.cocohcp.org.*

In addition, copies of all documents are also available at the following local agency offices: 

(1) City of Brentwood, Community Development Dept., 104 Oak Street, Brentwood, CA 94513. 

(2) City of Clayton, Community Development Department, 6000 Heritage Trail, Clayton, CA 94517. 

(3) City of Oakley, Community Development Department, 3231 Main Street, Oakley, CA 94561. 

(4) City of Pittsburg, Planning Department, 65 Civic Drive, Pittsburg, CA 94565. 

(5) East Bay Regional Park District, 2950 Peralta Oaks Court, Oakland, CA 94605. 

The documents are also available at the following Contra Costa Library locations: 

(6) 751 Third Street, Brentwood, CA. 

(7) 6125 Clayton Road, Clayton, CA. 

(8) Freedom High School, 1050 Neroly Road, Oakley, CA. 

(9) 80 Power Avenue, Pittsburg, CA. 

(10) Riverview Middle School, 205 Pacifica Avenue, Bay Point, CA. 

                    You also may obtain copies of these documents for review by contacting Sheila Larsen [see                     **FOR FURTHER INFORMATION CONTACT**                    ]. Documents also will be available for public inspection during normal business hours at the Sacramento Fish and Wildlife Office [see                     **ADDRESSES**                    ].                 

## Background Information 

Section 9 of the ESA and Federal regulations prohibit the take of fish and wildlife species listed as endangered or threatened (16 U.S.C. 1538). The term “take” means 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). 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)]. Under limited circumstances, the Service may issue permits to authorize incidental take of listed fish or wildlife; i.e., take that is incidental to, and not the purpose of, otherwise lawful activity. Regulations governing incidental take permits for threatened and endangered species are found in 50 CFR 17.32 and 17.22, respectively. 

Although take of listed plant species is not prohibited under the ESA, 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 plan. All species included on an incidental take permit would receive assurances under the Services “No Surprises” regulation [50 CFR 17.22(b)(5) and 17.32(b)(5)]. 

In response to the proposed permittees' application, the Service proposes to issue an incidental take permit to the following local agencies: Contra Costa County (County); the cities of Brentwood, Clayton, Oakley, and Pittsburg (cities); Flood Control District; and East Bay Regional Park District. An incidental take permit is also proposed to be issued to an Implementing Entity to be formed by the County and cities to implement certain aspects of the Plan. The local agencies and the Implementing Entity are collectively referred to as the “permittees”. The Association has prepared the Plan on behalf of the permittees to satisfy the application requirements for a section 10(a)(1)(B) incidental take permit under the ESA and a section 2835 permit under the California Natural Community Conservation Planning Act of 2003 (NCCPA). Thus, the Plan constitutes a Habitat Conservation Plan pursuant to the ESA, and a Natural Community Conservation Plan (NCCP) pursuant to the California NCCPA. 

                    The permittees seek a 30-year incidental take permit for covered activities within a proposed 174,018-acre planning area, located entirely in eastern Contra Costa County, California. They are requesting a permit for 28 species, 8 of which are currently listed as threatened or endangered under the ESA. Of these 28 species, the Association requests a permit and assurances for 17 animal species and assurances for 11 plant species. Proposed covered species include 3 wildlife species, currently listed as endangered under the ESA [San Joaquin kit fox (                    *Vulpes macrotus mutica*), longhorn fairy shrimp (                    *Brachinecta longiantenna*), and vernal pool tadpole shrimp (                    *Lepidurus packardi*)] and 5 wildlife species currently listed as threatened under the Federal ESA [Alameda whipsnake (                    *Masticophis lateralis euryxanthus*), giant garter snake (                    *Thamnophis gigas*), California tiger salamander (                    *Ambystoma californiense*), California red-legged frog (                    *Rana aurora draytonii*), and vernal pool fairy shrimp (                    *Brachinecta lynchi*)]. The proposed covered species also include 9 wildlife species and 11 plant species that are not currently listed under the ESA: Townsend's western big-eared bat (                    *Corynorhinus townsendii townsendii*), tricolored blackbird (                    *Agelaius tricolor*), golden eagle (                    *Aquila chrysaetos*), western burrowing owl (                    *Athene cunicularia hypugea*), Swainson's hawk (                    *Buteo swainsonii*), silvery legless lizard (                    *Anniella pulchra pulchra*), western pond turtle (                    *Clemmys marmorata*), foothill yellow-legged frog (                    *Rana boylii*), midvalley fairy shrimp (                    *Brachinecta mesovallensis*), Mount Diablo manzanita (                    *Arctostaphylos auriculata*), brittlescale (                    *Atriplex depressa*), San Joaquin spearscale (                    *Atriplex joanquiniana*), big tarplant (                    *Blepharizonia plumosa*                     ssp.                     *plumosa*), Mount Diablo fairy lantern (                    *Calochortus pulchellus*), recurved larkspur (                    *Delphinium recurvatum*), round-leaved filaree (                    *Erodium macrophyllum*), Diablo helianthella (                    *Helianthella castanea*), Brewer's dwarf flax (                    *Hesperolinon breweri*), showy madia (                    *Madia radiata*), and adobe navarretia (                    *Navarretia nigelliformis*                     ssp.                     *nigelliformis*).                 

If the proposed Plan is approved and the permit issued, take authorization of covered listed wildlife species would be effective at the time of permit issuance. Take of the currently non-listed covered wildlife species would be authorized concurrent with the species' listing under the ESA, should they be listed during the duration of the permit. Collectively, the 28 listed and unlisted species are referred to as the “covered species” in the Plan. 

                    The applicants propose to minimize and mitigate the effects to covered species associated with the covered activities by participating in the Plan. The proposed Plan is intended to be a comprehensive and multi-jurisdictional document, providing for regional species conservation and habitat planning, while allowing the prospective permittees to better manage                           ( print page 10783)                        anticipated growth and development. The proposed Plan also is intended to provide a coordinated process for permitting and mitigating the take of covered species as an alternative to the current project-by-project approach.                 

In order to define a reasonable range of expected growth, the proposed Plan defines two permit areas: the initial urban development area and the maximum urban development area. Although the initial and maximum urban development areas bound the range of the proposed permit area, the final permit area may lie somewhere in between, depending on local land use decisions that occur during the proposed 30-year permit term. The proposed Plan, therefore, encompasses a range of alternative permit areas. Both the initial and maximum urban development areas are based on current general plans of the local jurisdictions. 

The proposed initial urban development area is defined by: (1) The Urban Limit Line (ULL) of Contra Costa County and the city limits of the participating cities (Pittsburg, Clayton, Oakley, and Brentwood), whichever is largest; (2) the footprint of specific rural infrastructure projects outside the ULL and the city limits of participating cities; and (3) the boundary of any land acquired in fee title or conservation easement and managed under the Plan. 

Up to 8,670 acres of ground-disturbing urban development activities within the ULL are proposed to be permitted under the initial urban development. The proposed maximum urban development area is the largest extent to which urban development could expand under the terms of the proposed Plan. Under this scenario, up to 11,853 acres of ground-disturbing urban development activities within the permit area could be allowed, as long as the conditions of the Plan are met. With either urban development area, an additional 1,126 acres of impact are expected from rural infrastructure projects and activities within the Plan's preserves. Thus, total impacts allowed under the Plan, are 9,796 acres and 13,029 acres with the initial and maximum urban development areas, respectively. 

The conservation strategy was designed to minimize and mitigate the impacts of covered activities, contribute to the recovery of listed covered species, and protect and enhance populations of non-listed covered species, as proposed. The proposed conservation strategy provides for the establishment, enhancement, and long-term management of the preserves for the benefit of covered vegetation communities, covered species, and overall biodiversity and ecosystem functions. The proposed preserves would also serve to achieve other complementary goals such as recreation, grazing, and crop production, as long as the primary biological goals of the Plan are met and not compromised. The system of new preserves would likely be linked to existing protected lands to form a network of protected areas outside the area where new urban growth is proposed to be permitted under the Plan. 

                    On September 2, 2005, a notice was published in the                     **Federal Register**                     (70 FR 52434) announcing that the Service had received an application for an incidental take permit from the Association and the availability of the draft EIS/EIR. The draft EIS/EIR analyzed the potential environmental impacts that may result from the Federal action of authorizing incidental take associated with implementation of the Plan and the identified alternatives. We received a total of 18 comment letters on the draft EIS/EIR. A response to each comment received has been included in the final EIS/EIR.                 

## Alternatives 

The draft EIS/EIR analyzed three alternatives in addition to the proposed Plan described above. The proposed Plan was identified as Alternative 1 (also referred to as Conservation Strategy A). The three other alternatives are described below. 

Alternative 2 (also referred to as Conservation Strategy B) would provide for the same size planning area, located entirely in eastern Contra Costa County, with the same preserve size as the proposed Plan, except that the location of the preserve would be modified. Modification of the preserve locations would result in increased protection of chaparral and cultivated agriculture and decreased protection of grassland. This alternative would also involve less riparian restoration than the proposed Plan. Other elements of the proposed Plan would remain the same, including species and communities covered, conservation measures, monitoring and adaptive management, and implementation approach. 

Compared to the Proposed Plan, Alternative 3 (the Reduced Development Area Alternative) would provide for a reduced level of take due to a reduced permit area. Existing open space or agricultural lands within the ULL that are not currently designated for development would be conserved. Under this alternative, the permit area would be 6,991 acres. Other elements of the proposed Plan would remain the same including the species and communities covered, conservation measures, monitoring and adaptive management, and implementation approach. 

Under the Alternative 4 (the No-Action/No-Project alternative), the proposed Plan would not be adopted, and permits pursuant to Section 10(a)(1)(B) of the Act and Section 2835 of the NCCPA would not be issued by the Service and California Department of Fish and Game, respectively. Compliance with the ESA would continue to be addressed on a case-by-case basis. 

## National Environmental Policy Act 

Proposed permit issuance triggers the need for compliance with the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). Accordingly, a joint final NEPA/CEQA document has been prepared. The Service is the Lead Agency responsible for compliance under NEPA, and the Association is the Lead Agency with responsibility for compliance with CEQA. As NEPA Lead Agency, the Service is providing notice of the availability of the final EIS/EIR and is making available for public review the responses to comments on the draft EIS/EIR. 

## Public Review 

                    The Service and Association invite the public to review the final Plan, final EIS/EIR, and final IA during a 30-day public waiting period [see                     **DATES**                    ]. Any comments received, including names and addresses, will become part of the administrative record and may be made available to the public. Our practice is to make comments, including names, home addresses, home telephone numbers, and email addresses of respondents, available for public review. Individual respondents may request that we withhold their names and/or home addresses, etc., but if you wish us to consider withholding this information you must state this prominently at the beginning of your comments. In addition, you must present a rationale for withholding this information. This rationale must demonstrate that disclosure would constitute a clearly unwarranted invasion of privacy. Unsupported assertions will not meet this burden. In the absence of exceptional, documentable circumstances, this information will be released. We will always make submissions from organizations and businesses, and from individuals identifying themselves as representatives of or officials of organizations or businesses, available for public inspection in their entirety.                           ( print page 10784)    

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

This notice is provided pursuant to section 10(a) of the ESA and Service regulations for implementing NEPA, as amended (40 CFR 1506.6). We provide this notice in order to allow the public, agencies, or other organizations to review these documents. 

Dated: March 5, 2007. 

Polly Wheeler, 

Acting Deputy Manager,  California/Nevada Operations Office, Sacramento, CA.

[FR Doc. E7-4252 Filed 3-8-07; 8:45 am] 

BILLING CODE 4310-55-P