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###### Department of the Interior

###### Fish and Wildlife Service

          - [FWS-R8-ES-2009-N0060]; [1112-0000-81420-F2]

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Notice of availability: proposed low-effect habitat conservation plan; request for comment.

# SUMMARY:

We, the U.S. Fish and Wildlife Service, have received an application from Hossain Ahmadi (applicant) for a 3-year incidental take permit for five species under the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of three listed animals, one listed plant, and one non-listed plant. The applicant would implement a conservation program to minimize and mitigate the project activities, as described in the applicant's low-effect habitat conservation plan (plan). We request comments on the applicant's application and plan, and the 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), also available for public review.

# DATES:

We must receive written comments on or before May 18, 2009.

# ADDRESSES:

Please address written comments to Mike Thomas, Conservation Planning Branch, U. S. 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:

Mike Thomas, or Eric Tattersall, Division Chief, Conservation Planning Branch, at the address shown above or at 916-414-6600 (telephone).

# SUPPLEMENTARY INFORMATION:

## Availability of Documents

                    You may obtain copies of the permit application, plan, and EAS from the individuals in                     **FOR FURTHER INFORMATION CONTACT**                    . Copies of these documents are also 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, we 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.                

Although take of listed plant species is not prohibited under the Act, 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 in the incidental take permit would receive assurances under our “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).

                    The applicant seeks an incident take permit for covered activities within 9.2 acres (ac) (3.72 hectares (ha)) of grassland the applicant owns in Santa Clara County, California. The applicant is requesting permits for take of three animal species federally listed as threatened: Bay checkerspot butterfly (                    *Euphydryas editha bayensis*), California red-legged frog (                    *Rana aurora draytonii*),                           ( print page 17881)                        and California tiger salamander (                    *Ambystoma californiense*); one plant species federally listed as endangered: Santa Clara Valley dudleya (                    *Dudleya setchellii*). The plan also includes one non-listed plant species, the most beautiful jewelflower (                    *Streptanthus albidus*                     ssp.                     *peramoenus).*                     The plan does not include any nonlisted animal species. Collectively, these species are referred to as “covered species” in the plan.                

Covered activities include the following: Grading and ground leveling; vegetation removal and planting; soil compaction; building construction; and use of heavy equipment (including, but not limited to, bulldozers, cement trucks, water trucks, and backhoes); erosion control structures (such as silt fencing and barriers); dust control (such as watering surface soils); construction of driveways; trenching; installation of utilities and irrigation systems;, and associated landscaping.

The applicant proposes to avoid, minimize, and mitigate the effects to the covered species associated with the covered activities by fully implementing the plan. Minimization measures will include, but are not limited to, an employee education program; biological monitoring during construction and earthmoving; a storm water, erosion, and dust control plan; and salvage of individual Santa Clara Valley dudleya prior to construction. General minimization measures will include: Limiting staging and work areas to the project site only; regular removal of all foods and food-related trash every three days; prohibiting pets from the project site during construction; restricting ground disturbance to the period of July 1 through November 30 (generally the dry season), unless we authorize otherwise; and maintenance of all equipment to avoid fluid leaks.

## Alternatives

Our proposed action is approving the applicant's plan and issuance of an incidental take permit for the applicant's covered activities. As required by the Act, the applicant's plan considers alternatives to the take under the proposed action. The plan considers the environmental consequences of one alternative to the proposed action, the No Action Alternative. Under the No Action Alternative, we would not issue a permit; the applicant would not build the proposed single-family residence; the project area would continue to experience illegal off-road vehicle use, illegal trash dumping, and trespassing; and no take would occur for the construction of the residence and its associated structures.

Under the proposed action alternative, we would issue an incidental take permit for the applicant's proposed project, which includes the activities described above. The proposed action alternative would result in permanent loss of 1.33 ac (0.54 ha) of grassland habitat for the Bay checkerspot butterfly, California tiger salamander, California red-legged frog, Santa Clara Valley dudleya, and most beautiful jewelflower. To mitigate for these effects, the applicant proposes to protect, enhance, and manage in perpetuity 6.8 ac (2.76 ha) of on-site grassland.

## 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 (42 U.S.C. 4321*et seq.*), 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 our 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 that would be 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 we receive 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 applicant for the incidental take of the Bay checkerspot butterfly, California tiger salamander, California red-legged frog, Santa Clara Valley dudleya, and most beautiful jewelflower from the implementation of the covered activities described in the plan, or from mitigation conducted as part of this plan. We will make the final permit decision no sooner than 30 days after the date of this notice.

Dated: April 13, 2009.

Jan Knight,

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

[FR Doc. E9-8816 Filed 4-16-09; 8:45 am]

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