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###### Department of the Interior

###### Fish and Wildlife Service 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Notice of availability and receipt of applications. 

# 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                               ( print 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                           ( print 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] 

BILLING CODE 4310-55-P