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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice of availability: receipt of application; request for comment. 

# SUMMARY:

                        We, the Fish and Wildlife Service (Service), announce receipt of an application from the Pacific Gas & Electric Company (applicant) for a 3-year incidental take permit for the federally threatened bay checkerspot butterfly (                        *Euphydryas editha bayensis*) under section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of the butterfly incidental to proposed reconductoring and conservation management activities at the Metcalf-El Patio 115 kV and Metcalf-Hicks/Vasona 230 kV transmission line site in Santa Clara County, California (plan area). We request comments on the applicant's application and low-effect habitat conservation plan (plan), and on our preliminary determination that the Plan qualifies as a “low-effect” habitat conservation plan eligible for a categorical exclusion under the National Environmental Policy Act of 1969, as amended (NEPA). We discuss our basis for this determination in our environmental action statement (EAS), which is also available for review.                     

# DATES:

We must receive any written comments on or before June 14, 2007. 

# ADDRESSES:

Please address written comments to Lori Rinek, Chief, Conservation Planning and Recovery Division, Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, W-2605, Sacramento, CA 95825. Alternatively, you may send comments by facsimile to (916) 414-6713. 

# FOR FURTHER INFORMATION CONTACT:

Eric Tattersall, Chief, Conservation Planning Branch, or Cori Mustin, Senior Biologist, at the Sacramento Fish and Wildlife Office, at (916) 414-6600 (telephone). 

# SUPPLEMENTARY INFORMATION:

## Availability of Documents 

                    You may obtain copies of the permit application, plan, and EAS from the individuals named under                     **FOR FURTHER INFORMATION CONTACT**                    . Documents will                           ( print page 27332)                        also be available for public inspection, by appointment, during regular business hours at the Sacramento Fish and Wildlife Office (see                     **ADDRESSES**                    ).                 

## Public Availability of Comments 

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. 

## Background Information 

                    Section 9 of the Act (16 U.S.C. 1531*et seq.*) and its implementing Federal regulations prohibit the “take” of fish or wildlife species listed as endangered or threatened. “Take” is defined under the Act to include the following activities: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or to attempt to engage in such conduct. However, under section 10(a)(1)(B) of the Act, the Service may 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 incidental take permits for endangered and threatened species, respectively, are in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.                 

                    The applicant seeks a permit for take of one federally listed species, the threatened bay checkerspot butterfly (                    *Euphydryas editha bayensis*). This species is referred to as the “covered species” in the plan. The proposed reconductoring activities would temporarily affect approximately 2.4 acres (ac) of habitat, which comprises approximately 0.0084 percent of the species' designated critical habitat. The applicant would receive “No Surprises” assurances for the covered species under our “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).                 

                    Only one species listed under the Act, the bay checkerspot butterfly, has the potential to occur on the project site and to be incidentally taken by the proposed project. Several other sensitive species are located in the vicinity of the plan area, including: (1) California tiger salamander (                    *Ambystoma californiense*), federally listed as threatened; (2) California red-legged frog (                    *Rana aurora draytonii*), federally listed as threatened; (3) Santa Clara Valley dudleya (                    *Dudleya setchellii*), federally listed as endangered; and (4) Metcalf Canyon jewelflower (                    *Streptanthus albidus albidus*), federally listed as endangered. However, the Service determined that there would be no take of California tiger salamander or California red-legged frog. It was also determined that there would be no project-related effects on Santa Clara Valley dudleya or Metcalf Canyon jewelflower. Therefore, bay checkerspot butterfly is the only covered species in the plan.                 

The applicant proposes to reconductor two Metcalf transmission lines within the plan area. As discussed in the plan, proposed covered activities include the following: (1) Constructing crossing structures, (2) pulling new conductors, (3) accessing the plan area, (4) staging in the plan area, (5) implementing fire prevention/suppression measures, and (6) implementing a conservation strategy for the bay checkerspot butterfly.

The applicant proposes to avoid and minimize take and associated adverse project impacts to the covered species by fully implementing the plan. The applicant will minimize and mitigate the impacts of taking the bay checkerspot butterfly by implementing the following measures: (1) Conducting construction activities during summer and late fall; (2) ensuring that a qualified biologist is present to monitor and oversee technical issues relative to compliance with the mitigation and conservation measures; (3) restricting work activities to a 50-foot radius area from the center of most towers; (4) documenting serpentine (type of soil) habitat conditions with photographs before and after reconductoring activities; (5) developing and implementing, as appropriate, a re-seeding plan; (6) planning for rain that may occur prior to the completion of the project; (7) ensuring minimal disturbance caused by construction equipment; (8) ensuring that construction personnel receive worker awareness training; (9) ensuring that measures are taken to prevent accidental wildfires; and (10) halting project activities if bay checkerspot larvae or adults are found on site and coordinating with us regarding next steps. The applicant's plan also describes measures and funding sources that ensure that the elements of the plan would be implemented in a timely manner, actions to be taken if unforeseen events occur, and other required elements. 

Our proposed action consists of approving the applicant's plan and issuing an incidental take permit for the applicant's project. As required by the Act, the applicant's plan also considers alternatives to the take considered under the proposed action. The plan considers the environmental consequences of one alternative to the proposed action, the No Action alternative. The proposed action alternative consists of issuance of the incidental take permit for the applicant's proposed project, which includes the activities described above. The proposed action alternative would result in temporary impacts to 2.4 ac of serpentine habitat. To mitigate for temporary impacts, the applicant agrees to purchase and conserve at least 1.2 ac of bay checkerspot butterfly habitat at a ratio of 0.5 to 1, of acres permanently protected to acres temporarily affected. 

Under the No Action alternative, no permit would be issued, no construction associated with reconductoring activities would occur, and no take would occur. Under this alternative, the applicant would not be able to provide a safe and reliable power supply to its south San Jose service area, which is currently operating close to its maximum load rating. Additionally, an outage on one of the existing circuits could result in power curtailments or outages in the area, which would put the public's health, welfare, and safety at risk and could also result in substantial damage to the applicant's electrical system. No conservation areas would be protected under the No Action alternative. 

## National Environmental Policy Act 

                    As described in our EAS, we have made the preliminary determination that approval of the proposed plan and issuance of the permit would qualify as a categorical exclusion under NEPA, as provided by Federal regulations (40 CFR 1500, 5(k), 1507.3(b)(2), 1508.4) and the Department of the Interior Manual (516 DM 2 and 516 DM 8). Our EAS found that the proposed plan qualifies as a “low-effect” habitat conservation plan, as defined by the Service's Habitat Conservation Planning Handbook (November 1996). Determination of low-effect habitat conservation plans is based on the following three criteria: (1) Implementation of the proposed plan would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the proposed 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 which would be                           ( print page 27333)                        considered significant. Based upon the preliminary determinations in the EAS, we do not intend to prepare further NEPA documentation. We will consider public comments when making the final determination on whether to prepare an additional NEPA document on the proposed action.                 

## Public Review 

We provide this notice pursuant to section 10(c) of the Act and the NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 1506.6). We will evaluate the permit application, including the plan, and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, we will issue a permit to the Pacific Gas & Electric Company for incidental take of the bay checkerspot butterfly during Metcalf reconductoring work. We will make the final permit decision no sooner than 30 days after the date of this notice. 

Dated: May 9, 2007. 

Susan K. Moore, 

Field Supervisor, Sacramento Fish and Wildlife Office, Sacramento, California. 

[FR Doc. E7-9277 Filed 5-14-07; 8:45 am] 

BILLING CODE 4310-55-P