[Federal Register Volume 70, Number 24 (Monday, February 7, 2005)]
[Notices]
[Pages 6452-6454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2250]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service


Availability of an Environmental Assessment and Receipt of 
Applications for Incidental Take Permits for the Arnaudo Brothers, 
Wathen-Castanos, and River East Holding Sites in Merced County, CA

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of availability and receipt of applications.

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SUMMARY: The Arnaudo Brothers, Wathen-Castanos, and River East Holding 
Sites (Applicants) have applied to the Fish and Wildlife Service 
(Service) for incidental take permits pursuant to section 10(a)(1)(B) 
of the Endangered Species Act (Act) of 1973, as amended. The Service is 
considering issuing 10-year permits to the Applicants that would 
authorize take of the endangered San Joaquin kit fox (Vulpes macrotis 
mutica, ``kit fox'') incidental to otherwise lawful activities 
associated with the residential and commercial development of four 
sites in Merced County, California. The projects would result in the 
incidental take of kit fox on the project sites through permanent 
removal of 182 acres of

[[Page 6453]]

habitat. Incidental take may also potentially occur during construction 
and ground disturbance activities, which may affect occupied dens and 
individual foxes.
    We request comments from the public on the permit applications and 
the Environmental Assessment, both of which are available for review. 
The permit applications include the proposed Habitat Conservation Plan 
(HCP) and associated Implementing Agreement. The HCP describes the 
proposed action and the measures that the Applicants will undertake to 
minimize and mitigate, to the maximum extent practicable, take of the 
kit fox.

DATES: We must receive your written comments on or before March 9, 
2005.

ADDRESSES: Please address written comments to Ms. Lori Rinek, U.S. Fish 
and Wildlife Service, 2800 Cottage Way, Room W-2605, Sacramento, 
California 95825. You also may send comments by facsimile to (916) 414-
6713.

FOR FURTHER INFORMATION CONTACT: Ms. Lori Rinek, Chief, Conservation 
Planning and Recovery Division, at (916) 414-6600.

SUPPLEMENTARY INFORMATION:

Availability of Documents

    You may obtain copies of these documents for review by contacting 
the above office [see FOR FURTHER INFORMATION CONTACT]. Documents also 
will be available for public inspection, by appointment, during normal 
business hours at the above address [see ADDRESSES] and at the 
following Web site: http://www.harveyecology.com/.

Background

    Section 9 of the Act and Federal regulations prohibit the ``take'' 
of fish and wildlife species listed as endangered or threatened. Take 
of federally-listed fish and wildlife is defined under the Act as 
including to ``harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to engage in any such conduct.'' The 
Service may, under limited circumstances, issue permits to authorize 
incidental take (i.e., take that is incidental to, and not the purpose 
of, the carrying out of an otherwise lawful activity). Regulations 
governing incidental take permits for threatened species are found in 
50 CFR 17.32.
    The Applicants propose to develop 182 acres on 4 sites in the 
unincorporated community of Santa Nella in western Merced County, 
California: Arnaudo 1, Arnaudo 2, Wathen-Castanos, and River East. The 
Arnaudo 1 and 2 and Wathen-Castanos sites are situated west and east of 
State Route 33 respectively, and north of State Route 152. The O'Neill 
Forebay State Wildlife Area lies west of the Delta-Mendota Canal, which 
is located west of the project sites. To the south of the project 
sites, the Delta-Mendota Canal and California Aqueduct flow from west 
to east. The River East site, on which the proposed wastewater 
treatment facility would be located, is situated to the east of 
Interstate 5 and west of the Outside Canal. The proposed development 
would occur on undeveloped parcels within an area of existing 
residential and commercial development. The project sites contain, and 
are adjacent to, habitat suitable to support kit fox. Critical habitat 
for the kit fox has been neither designated nor proposed.
    Kit foxes have historically been known to occur in the area of the 
proposed projects, and have been seen south and northwest of the 
project sites. At least 13 surveys for the kit fox have been conducted 
in the Santa Nella area, of which 5 determined kit fox to be present in 
the area. In 1992, a kit fox survey (conducted according to 1990 
California Department of Fish and Game recommendations) was undertaken 
for the Santa Nella community; however, no kit foxes were detected. Kit 
foxes are known to occur south of the State Route 33/152 interchange. A 
female with pups was observed in 2004 along Billie Wright Road. Kit fox 
sightings and dens have also been reported in and around the proposed 
Los Banos Grandes Reservoir and the proposed Villages of Laguna San 
Luis project, both located south of the project sites. In the spring of 
1998, a radio-collared kit fox was documented northwest of the Santa 
Nella community within the right-of-way along the Delta-Mendota Canal. 
Based on the results of these surveys and on other records, the Service 
has determined that the implementation of the proposed projects would 
likely result in take of kit fox through the permanent removal of 182 
acres of habitat on the sites.
    To mitigate for any take of kit fox on the project sites, the 
Applicants propose to preserve, and manage in perpetuity, a total of 
447.9 acres of kit fox habitat. Within the Santa Nella community, the 
Applicants would establish movement corridors consisting of 39.8 acres 
along the Delta-Mendota Canal and 27.1 acres along the west side of the 
Outside Canal. In addition, a 5-acre refugium would be created north of 
the San Luis Wasteway and east of the Delta-Mendota Canal. The 
Applicants also propose to preserve in perpetuity 376 acres of off-site 
habitat, which would provide breeding and foraging areas for source 
populations located to the north and south of the Santa Nella 
community. The combination of on-site and off-site habitat preservation 
is intended to achieve the goal of protecting and maintaining habitat 
to facilitate population interchange between the core population to the 
south and northern kit fox populations, and to help ensure the survival 
of source populations.
    In addition to habitat preservation and management, the Applicants 
propose to avoid and/or minimize the potential effect on kit foxes 
associated with pre-construction and construction activities through 
the adoption of various measures, including the Service's standardized 
recommendations for protection of the kit fox prior to and during 
ground disturbance activities. Furthermore, the Applicants have 
identified measures to avoid and minimize any potential indirect 
effects on kit foxes using preserved corridors adjacent to the proposed 
development. Such measures include leash laws, signage and fencing, 
night lighting standards, and pesticide and rodenticide restrictions.
    The Service's Environmental Assessment evaluates the environmental 
consequences of four alternatives, including: (1) The Proposed Project 
Alternative, which involves the of issuance of incidental take permits 
and implementation of the proposed HCP; (2) the Reduced Density 
Alternative, which is identical to the Proposed Project Alternative, 
except that residential housing construction within the project sites 
would occur at half the density as that planned under the Proposed 
Project Alternative; (3) the 1999 Draft HCP Alternative, which involves 
the same level of development as the Proposed Project Alternative, but 
differs in the approaches proposed to address potential impacts to kit 
fox as a result of the development; and (4) the No Action Alternative, 
which presumes that no incidental take permits would be issued and that 
the proposed development would not proceed.
    Although the Reduced Density Alternative does not differ from the 
Proposed Project Alternative with respect to the establishment of 
corridors and preservation of other conservation lands, the reduction 
in housing density would potentially result in the creation of small 
habitat patches, which could further adversely affect kit foxes. The 
1999 Draft HCP Alternative, which proposes the preservation of off-site 
habitat only, would result in an inferior conservation outcome for kit 
fox than the Proposed Project Alternative because it would not lead to 
the permanent establishment of movement

[[Page 6454]]

corridors through the Santa Nella community. The Service considers 
movement corridors, which would facilitate population interchange 
between northern and southern kit fox populations, to be of critical 
importance to the survival of the species. The No Action Alternative 
would not provide for the long-term conservation of kit fox in the area 
because conservation lands and movement corridors would not be 
permanently established.
    Pursuant to an order issued on June 10, 2004, by the District Court 
for the District of Columbia in Spirit of the Sage Council v. Norton 
Civil Action No. 98-1873 (D.D.C.), the Service is enjoined from issuing 
new section 10(a)(1)(B) permits or related documents containing ``No 
Surprises'' assurances, as defined by the Service's ``No Surprises'' 
rule published at 63 FR 8859 (February 23, 1998), until such time as 
the Service adopts new permit revocation rules specifically applicable 
to section 10(a)(1)(B) permits in compliance with the public notice and 
comment requirements of the Administrative Procedures Act. This notice 
concerns a step in the review and processing of a section 10(a)(1)(B) 
permit and any subsequent permit issuance will be in accordance with 
the Court's order. Until such time as the June 10, 2004, order has been 
rescinded or the Service's authority to issue permits with ``No 
Surprises'' assurances has been otherwise reinstated, the Service will 
not approve any incidental take permits or related documents that 
contain ``No Surprises'' assurances.
    This notice is provided pursuant to section 10(a) of the Act and 
the regulations of the National Environmental Policy Act (NEPA) of 1969 
(40 CFR 1506.6). All comments that we receive, including names and 
addresses, will become part of the official administrative record and 
may be made available to the public. We will evaluate the application, 
associated documents, and comments submitted thereon to determine 
whether the application meets the requirements of NEPA regulations and 
section 10(a) of the Act. If we determine that those requirements are 
met, we will issue a permit to the Applicant for the incidental take of 
the kit fox. We will make our final permit decision no sooner than 30 
days from the date of this notice.

    Dated: January 28, 2005.
Mike Boylen,
Deputy Manager, California/Nevada Operations Office, Sacramento, 
California.
[FR Doc. 05-2250 Filed 2-4-05; 8:45 am]
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