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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 advises the public that the City of Anaheim (Applicant) has applied to the Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10 (a) 1 (B) of the Endangered Species Act of 1973, as amended. The proposed permit would authorize the incidental take of the federally threatened coastal California gnatcatcher (                        *Polioptila californica californica*) in Deer Canyon Park Preserve, in the City of Anaheim, Orange County, California. Take would occur through the permanent loss of 1.39 acres of coastal sage scrub habitat during facility development and fuel management. The Applicant seeks a permit for a period of 30 years.                    

We request comments from the public on the permit application, which is available for review. The application also includes a Habitat Conservation Plan (HCP). The HCP describes the proposed project and the measures that the Applicant would undertake to minimize and mitigate take of coastal California gnatcatcher. We also request comments on our preliminary determination that the HCP qualifies as a “low-effect” habitat conservation HCP, eligible for a categorical exclusion under the National Environmental Policy Act (NEPA).

# DATES:

Written comments should be received on or before June 11, 2001.

# ADDRESSES:

Written comments should be addressed to the Field Supervisor, Fish and Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 92008. Comments may be sent by facsimile to telephone (760) 431-9624.

# FOR FURTHER INFORMATION CONTACT:

Karen Evans, Division Chief, Los Angeles and Orange Counties, at the above address or call (760) 431-9440.

# SUPPLEMENTARY INFORMATION:

## Availability of Documents

You may obtain copies of the documents for review by calling the Service's Carlsbad Fish and Wildlife Office at the above referenced telephone number. Documents also are available for public inspection, by appointment, during normal business hours at the above address.

## Background

Section 9 of the Endangered Species Act, and its implementing regulations, prohibit the “take” of fish or wildlife species listed as endangered or threatened species. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or attempt to engage in such conduct (16 U.S.C. 1538). Harm may include significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, and sheltering [50 CFR 17.3(c)]. The Service may, under certain circumstances, issue permits to authorize take of endangered or threatened wildlife species incidental to, and not the purpose of, otherwise lawful activities. Regulations governing permits for endangered or threatened species are found at 50 CFR 17.22 and 17.32.

Under the proposed action, improvement of park facilities and fire management activities would directly impact the coastal California gnatcatcher by removing 1.39 acres of coastal sage scrub vegetation utilized by coastal California gnatcatchers. The Deer Canyon Park Preserve totals approximately 130 acres. The Applicant's HCP describes consideration of alternatives to the action and provisions for minimization and mitigation of impacts.

The HCP is further designed to assure that this action does not reduce the potential for survival and recovery of the coastal California gnatcatcher in the wild, as mandated by requirements of 50 CFR Part 17.22(b)(1)(iii).

                    The HCP proposes the following measures to minimize the impacts of the project on coastal California gnatcatchers: (1) Fuel modification and clearing of coastal sage scrub will be conducted outside the gnatcatcher breeding season. If it is necessary to clear coastal sage scrub during the breeding season, surveys by a qualified biologist must demonstrate that gnatcatchers are not nesting or rearing chicks in the affected area; (2) a project monitor will be present during all clearing activities to make sure no birds or nests are directly harmed or                           ( print page 24151)                        destroyed; (3) construction limits will be fenced or flagged prior to construction activities to avoid inadvertent disturbance of areas outside the construction zone; (4) the proper use and disposal of oil and gasoline will be enforced; and (5) all trash associated with construction activities will be properly contained and disposed.                

To mitigate for the permanent loss of occupied habitat due to the proposed activities, the Applicant proposes to revegetate 6.0 acres of non-native grassland in Deer Canyon Park Preserve with coastal sage scrub vegetation. The revegetated area would connect patches of fragmented coastal sage scrub that lie to the north and south. A restoration HCP will be developed that includes performance criteria, such as percent cover by native and non-native plants, native plant diversity, and evidence of natural reproduction, which must be met. The restoration plan must be reviewed and approved by the U.S. Fish and Wildlife Service.

The HCP considered the following alternatives: (1) The proposed project; (2) use of a mitigation fee; (3) redesign of the project; and (4) no project or no action alternative.

The proposed project involves the issuance of a permit under section 10(a)(1)(B) of the Act to authorize the incidental take of the threatened coastal California gnatcatcher during facilities improvement and fire management activity. The project impacts 1.39 acres of coastal sage scrub occupied by the coastal California gnatcatcher. Mitigation for the project is the revegetation of 6.0 acres of non-native grassland with coastal sage scrub vegetation.

The use of a mitigation fee to compensate for the loss of coastal sage scrub, as outlined in the Central and Coastal Orange County Natural Community Conservation Plan (NCCP), is not authorized for this project because Deer Canyon Park Preserve is designated as an Existing Use Area, and the in-lieu fee mitigation program is not available to mitigate for take of gnatcatchers within Existing Use Areas unless specifically authorized by the U.S. Fish and Wildlife Service and California Department of Fish and Game.

Under the redesign alternative, the applicant would redesign the project to further reduce impacts to coastal sage scrub vegetation. The applicant states that it is not possible to further redesign the project and meet project goals.

Under the No Project alternative the project would not occur. Therefore an incidental take permit would not be required and the Applicant would abandon the proposed project.

The Service has determined that the HCP qualifies as a “Low Effect” Habitat Conservation Plan as defined by the Fish and Wildlife Service's Habitat Conservation Planning Handbook (November 1996). Our determination that a habitat conservation plan qualifies as a low-effect plan is based on the following three criteria: (1) Implementation of a plan would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of a plan would result in minor or negligible effects on other environmental values or resources; and (3) impacts of a 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 considered significant.

The Service therefore has made a preliminary determination that approval of the HCP qualifies as a categorical exclusion under NEPA, as provided by the Department of the Interior Manual (516 DM 2, Appendix 1 and 516 DM 6, Appendix 1). Based on this preliminary determination, we do not intend to prepare further NEPA documentation. The Service will consider public comments in making its final determination on whether to prepare such additional documentation.

This notice is provided pursuant to section 10(a) of the Endangered Species Act and Service regulations for implementing the National Environmental Policy Act of 1969 (40 CFR 1506.6). The Service will evaluate the permit application, the HCP, and the associated documents and comments submitted thereon to determine whether the application meets the requirements of section 10(a) of the Endangered Species Act. If we determine that the requirements are met, we will issue a permit for the incidental take of the coastal California gnatcatcher. A final decision on permit issuance will be made no sooner than 30 days from the date of this notice.

Dated: April 23, 2001.

Jill Parker,

Acting Deputy Manager, California/Nevada Operations Office, Fish and Wildlife Service, Sacramento, California.

[FR Doc. 01-11897 Filed 5-10-01; 8:45 am]

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